The Rule of the Admirals : Law, Custom, and Naval Government in Newfoundland, 1699-1832 [1 ed.] 9781442682283, 9780802086136

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THE RULE OF THE A D M I R A L S Law, Custom, and Naval Government in Newfoundland, 1699-1832

The Rule of the Admirals examines governance in Newfoundland from the rule of the fishing admirals in 1699 to the establishment of representative government in 1832. It offers the first in-depth account of the rise and fall of the system of naval government that dominated the island for more than a century. In this provocative look at legal culture in eighteenth- and nineteenthcentury Newfoundland, Jerry Bannister explores three topics in detail: naval government in St John's, surrogate courts in the outports, and patterns in the administration of law. He challenges the conventional view that early Newfoundland was a lawless frontier isolated from the rest of the Atlantic world, and argues that an effective system of naval government emerged to meet the needs of those in power. The Rule of the Admirals sheds light on one of the most misunderstood chapters in Canadian and British colonial history. Drawing on extensive archival research as well as a broad range of secondary sources, Bannister provides a groundbreaking reinterpretation of a critical period in Newfoundland's colonial development. (The Osgoode Society for Canadian Legal History) J E R R Y BANNISTER is an assistant professor in the Department of History at Dalhousie University.

PATRONS OF THE S O C I E T Y

Aird & Berlis LLP Blake, Cassels & Graydon LLP Davies, Ward Phillips & Vineberg LLP McCarthy Tetrault LLP Osier, Hoskin & Harcourt LLP Torkin Manes Cohen & Arbus LLP Torys LLP WeirFoulds LLP The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

T H E L A W FOUNDATION OF O N T A R I O

The Society also thanks The Law Society of Upper Canada for its continuing support.

THE RULE OF

THE ADMIRALS Law, Custom, and Naval Government in Newfoundland, 1699-1832

JERRY BANNISTER

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto Buffalo London

www.utppublishing.com © Osgoode Society for Canadian Legal History 2003 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Printed in Canada ISBN 0-8020-8843-0 (cloth) ISBN 0-8020-8613-6 (paper)

(bo) Printed on acid-free paper National Library of Canada Cataloguing in Publication Bannister, Jerry, 1968The rule of the admirals : law, custom, and naval government in Newfoundland, 1699-1832 / Jerry Bannister. Includes bibliographical references and index. ISBN 0-8020-8843-0 (bound). ISBN 0-8020-8613-6 (pbk.) 1. Justice, Administration of - Newfoundland and Labrador History. 2. Newfoundland and Labrador - Politics and government To 1763. 3. Newfoundland and Labrador - Politics and government 1763-1855. I. Osgoode Society for Canadian Legal History. II. Title. KEN1365.B35 2003

347.718

C2003-903629-4

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP). This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada.

For my parents, Marina and Gerald Bannister, and for Patti, with love.

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Contents

L I S T OF T A B L E S , I L L U S T R A T I O N S , AND A P P E N D I C E S

IX

FOREWORD

Xi

PREFACE

Xiii

ACKNOWLEDGMENTS

xvii

1 2 3 4 5 6 7 8 9

3 26 64 104 141 187 222 256 280

Introduction The Fishing Admirals System An Unruly Set of People: The Struggle for Judicial Authority The Establishment of Naval Government A Fief of the Admiralty: Newfoundland under Naval Rule Using Mercy and Terror: The Patterns of Criminal Justice Enforcing the Social Order: Punishment in a Fishing Society The Fall of Naval Government Conclusion

N O T E S ON P R I M A R Y S O U R C E S

289

NOTES

299

B I B L I O G R A P H Y OF P R I M A R Y SOURCES

389

INDEX

399

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Tables, Illustrations, and Appendices

Tables 2.1 3.1 5.1 5.2 6.1 6.2 6.3 6.4 7.1 7.2 7.3 7.4 8.1

The fishing admirals' jurisdiction, 1749-92 Legal fees in St John's, 1730 Distribution of cases in Trinity District, 1760-90 Naval Squadron at Newfoundland, 1808 Pardons granted to capital offenders, 1750-91 Division of resident population by gender, 1725-95 Sample of defendants tried at the assizes Division of resident population by religious affiliation, 1754-1816 Noncapital punishment at the assizes, 1750-91 Noncapital punishment at the district courts Whipping at the district courts Verdicts in master-servant cases in Trinity District, 1765-90 Political participation in St John's, 1826

51 77 152 181 190 202 210 216 225 233 240 244 269

Figures 2.1 3.1 4.1 6.1

Photo plates follow page xix. The administration of law, 1699-1728 The administration of law, 1729-48 The administration of law, 1750-91 The pardon process, 1750-92

40 81 120 192

x Tables, Illustrations, and Appendices Maps 3.1 Judicial districts in Newfoundland, 1732 5.1 Governor Palliser's Scheme of Civil and Naval Districts, 1764 5.2 Warships on the Newfoundland Station, 1773

71

150 166

Appendices 2.1 3.1 3.2 4.1 4.2 4.3 4.4

King William's Act The Newfoundland Commission of the Peace Report on the Legal Powers of the Fishing Admirals, 1731 The Governor's Instructions, 1738-51 The Governor's Commission The Commission of Oyer and Terminer The Surrogate's Commission

60 98 102 134 135 138 139

Notes on Primary Sources Records of the Court of Oyer and Terminer Sample of the District Court Records Records of the Fishing Admirals' Court

289 292 295

Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

Jerry Bannister is a young historian in the early stages of his career. Already, however, as this book attests, he has emerged as a major scholar actively reinterpreting the history of Newfoundland and its place in the early British Empire. Previous historical studies created enduring stereotypes which unduly emphasized the island's lack of social and governmental structures, particularly the alleged weaknesses of 'naval government.' With few exceptions, historians still see eighteenth-century Newfoundland through the lens of cultural exceptionalism as an isolated backwater cut off from the mainstream of Atlantic commerce and politics. In this original and perceptive work, Professor Bannister requires us to rethink much of what we know about early Newfoundland history. By addressing the issue of how the island was governed in the 130 years prior to the establishment of an elected assembly, and by placing his analysis firmly within the material conditions of Newfoundland society, he provides a striking new analysis of a critical period in the island's colonial development. The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now chief justice of Ontario, and

xii Foreword

officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research-support program, a graduate student research-assistance program, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society's members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary, and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of significant trials, and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Robert Armstrong, Jane Banfield, Kenneth Binks, Patrick Erode, Brian Bucknall, Archie Campbell, David Chernos, Kirby Chown, J. Douglas Ewart, Martin Friedland, Elizabeth Goldberg, John Honsberger, Horace Krever, Vern Krishna, Virginia MacLean, Roy McMurtry, Brendan O'Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, Norm Sterling, and Richard Tinsley. The annual report and information about membership may be obtained by writing: The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416-947-3321. E-mail: [email protected] Website: Osgoodesociety.ca R. Roy McMurtry President

Peter N. Oliver Editor-in-Chief

Preface

The research for this book evolved through three stages. The first task I faced was the challenge of reconstructing the basic framework of Newfoundland's early legal system. The era of the fishing admirals and naval government was a virtual terra incognita, and I spent months working to decipher the structure of the bewildering array of sources I encountered in Newfoundland and England. The results of this work are presented in the Notes on Primary Sources, which provide a description and analysis of some of the main archival records used in the book. I decided to include this material because it not only sheds valuable light on the island's legal development, but also provides a guide for other scholars interested in the regulation of the Atlantic cod fishery in the eighteenth century. When I began my research, I was told that I would not find anything of substance, since it was assumed that no effective local government existed prior to 1832. As it turned out, nothing could be further from the truth, and I was at times overwhelmed by the richness of the archival data. The second stage of my research involved building a model of how the legal system operated in practice. After I returned from my first research trip, I had lunch in Toronto with John Beattie, who asked how my work was progressing. As I launched into a rather tedious account of how the surrogate courts were abolished in the nineteenth century, John interrupted gently and asked me to explain the commission on which the courts relied. John's question stopped me cold, as it struck

xiv

Preface

me that I did not have the foggiest idea of how the surrogate courts were legally constituted. I thought initially that it would take only a few weeks to sort out the various jurisdictions, after which I could get on with the work of analysing patterns in the administration of law. In the end, it took me many months to reconstruct the seasonal operation of the judiciary and to assess how it changed during the eighteenth century. To supplement the analysis of the courts and magistracy in chapters 2-4, I have included a number of appendices which explain the different offices and commissions used under naval government. In the third phase of my research, I confronted the broader issue of the socio-political significance of naval rule. I wanted to place my study of the island's legal system in the context of the social relations and material conditions of the cod fishery. In order to ascertain how naval government affected those who sailed from England and Ireland to work in the fishery, I concentrated on the administration of criminal justice, the law of master and servant, and the role of sectarianism. Through quantitative analysis and case studies - most of this material is presented in chapters 5-7 -1 tried to get a sense of how the legal system actually functioned at the local level. I also explored how the island's naval government eventually collapsed as a result of the new political culture that emerged in the early nineteenth century; the results of this research appear in chapter 8. This work entailed a reassessment of Newfoundland's place in the British Empire, as I examined the relationship between imperial policy and local practice. Throughout my archival research in St John's and London, I paid particular attention to how the trans-Atlantic nature of the fishery shaped Newfoundland's cultural and political development. During my research I came across countless references to the customs of Newfoundland. The terms 'according to ancient custom' and 'the custom of the country' appeared frequently throughout the primary sources, and their specific legal usages are discussed in the book. As I was writing one of the early chapters, it dawned on me that the notion of the custom of the country had a much deeper meaning, which in many respects encapsulated the basic idea behind this book. The term was used throughout North America in a variety of geographic and cultural contexts - from Maryland to the Canadian West - to denote the accepted cultural practices which prevailed in a local community.1 In other words, it was used to describe the way things were done in a particular place. When Richard Henry Dana compiled his famous account of maritime life, Two Years Before the Mast, he invoked the term as a means to

Preface xv

explain the different cultures he encountered during his voyage. On landing at San Pedro, he told his readers, 'I betook myself to my acquaintances on shore, and from them learned a good deal about the customs of the country/2 As I laboured to understand how the Newfoundland fishery was governed, I too felt like a visitor in a foreign port, forced to comprehend social norms and practices that the locals took for granted. As the empirical enterprise of primary research gave way to the imaginative exercise of historical writing, I was faced with the question of what it was like to live under naval government, and this provided much of the impetus for how I conceptualized the chapters.3 This book studies a single colonial jurisdiction and omits a number of peoples and geographic areas. It considers only the island of Newfoundland - it does not examine Labrador or St Pierre et Miquelon and excludes the portion of the coast under French control. I do not attempt to deal with the administration of the French Shore because Anglo-French relations in this region involved international politics and jurisdictional battles between two sovereign nation-states.4 While I do comment on the impact of Anglo-French conflict on state formation, my focus is limited primarily to the main areas of English and Irish settlement in the eighteenth century. This territory stretched along the coast from Bonavista Bay in the north - along Trinity Bay, Conception Bay, the Southern Shore, and St Mary's Bay - down to Placentia Bay in the south. The task of investigating the development of law and authority in communities under English control proved to be more than enough of a challenge. Other topics, such as relations between Europeans and aboriginal peoples, are touched on briefly in chapter 1. Unless otherwise noted, all dates are cited in the new style, with the year beginning on 1 January, rather than the old style (pre-1752), when the New Year began on 25 March. Finally, I should explain that this book examines two different types of 'admirals': the fishing admirals (civilians who were the masters of the first English fishing vessel to enter a harbour in Newfoundland each spring); and admirals in the Royal Navy (naval officers who commanded the Newfoundland squadron and were commissioned to serve concurrently as governor). The relationship between these two types of admirals is discussed at length in chapters 2-4.

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Acknowledgments

Parts of this book appeared in earlier forms in three articles: 'The Naval State in Newfoundland, 1749-1791,' Journal of the Canadian Historical Association New Series 11 (2000): 17-50; 'Convict Transportation and the Colonial State in Newfoundland, 1789,' Acadiensis 27, 2 (Spring 1998): 95-123; and The Campaign for Representative Government in Newfoundland/ Journal of the Canadian Historical Association New Series 5 (1994): 19^10. I gratefully acknowledge the financial support of the Social Sciences and Humanities Research Council of Canada, through doctoral and postdoctoral fellowships; the Institute of Social and Economic Research at Memorial University, through doctoral and postdoctoral fellowships, as well as a research grant; the Government of Ontario, through the Queen Elizabeth II Ontario Scholarship; the Government of Newfoundland and Labrador, through the J.W. Pickersgill Fellowship; the London Goodenough Association of Canada, through a scholarship for study in England; the School of Graduate Studies at the University of Toronto, through a research travel grant; the Department of History at the University of Toronto, through fellowships and travel grants; the Centre of Criminology at the University of Toronto, through a Grant for Advanced Criminological Research; and The Osgoode Society for Canadian Legal History, for a research grant. Over the years I have incurred many more debts than I can ever hope to repay. I would like to acknowledge the invaluable assistance of a number of institutions and individuals: the Centre for Newfound-

xviii Acknowledgments

land Studies, in particular Bert Riggs; the Maritime History Archive, especially Heather Wareham; the National Archives of Canada, in particular Patricia Kennedy, archivist in the Manuscript Division of the Historical Resources Branch; and the Institute of Social and Economic Research, especially Eleanor Fitzpatrick. In England, my research was facilitated by the helpful staff at London Goodenough House. I am particularly indebted to the Director of the London Goodenough Trust, Timothy Toyne Sewell, and to Andrew Parsons, a friend and fellow Newfoundlander studying in London. In Dorset, I was very fortunate to receive generous assistance from Alan Perry, who not only introduced me to the West Country archives, but also gave me a guided tour of Poole. This book could not have been written without the help of the efficient and knowledgeable staff at the Provincial Archives of Newfoundland and Labrador. I would like to thank the former Provincial Archivist, David Davis, who gave me sound advice at a crucial stage of my research, as well as the current Provincial Archivist, Shelley Smith, who has been unfailingly supportive of my research. I would like also to thank the staff in the Client Services Unit, and especially Cal Best for lending his time and expertise. I am grateful for having had the opportunity to work in an environment that was as impeccably professional as it was incredibly helpful. I am indebted to many colleagues for their assistance during the various stages of writing. For their comments and suggestions, I thank Sean Cadigan, Terry Carlson, Paul Craven, Simon Devereaux, Christopher English, John FitzGerald, Donald Fyson, Gordon Handcock, James Hiller, Susan Lewthwaite, Christopher Munn, Patrick O'Flaherty, Peter Pope, Ronald Rompkey, Shannon Ryan, and Jeff Webb. Vince Walsh not only read and commented on large portions of the manuscript but also assisted with numerous practical issues (particularly computer problems), and I am extremely grateful for his help and his friendship. I am also indebted to Tom Evans for all his personal support. During my time in Toronto, I had the privilege to study under a group of outstanding scholars, and I would like to thank John Beattie, Douglas Hay, Jim Phillips, and Carolyn Strange for their tremendous help and support. I am especially indebted to my doctoral supervisor, Allan Greer, who has been a constant source of guidance and encouragement. Allan's penetrating intellect and rigorous standards inspired me to work harder than I had planned, while his warmth and generosity of spirit made the process more enjoyable than I had anticipated. I am also grateful to my

Acknowledgments xix

postdoctoral supervisors, Daniel Vickers and Gregory Kealey, for their advice and assistance. I would like to thank Danny and Greg for their generous intellectual and personal support during my time at Memorial University. Throughout the publishing process, I have had the good fortune to work with an excellent group of editors. Gerald Hallowell and Jill McConkey at the University of Toronto Press were instrumental in shepherding the manuscript through the initial phases, while Len Husband has worked tirelessly to see the book through to completion. I am indebted to Len for not only his expert editorial work, but also his unfailing support, patience, and humour. I would also like to thank Allyson May, for copy-editing the manuscript, and Keith Mercer, for helping with the editing. From the very beginning, The Osgoode Society has played a crucial role in this project. Peter Oliver has carefully read every version of the manuscript, providing incisive suggestions at each stage of the publishing process. I would like to thank Peter for all his help and encouragement over the past few years. I also owe a large debt of gratitude to Marilyn MacFarlane at The Osgoode Society for her efficient work in guiding the manuscript through the publishing labyrinth. And I thank Anne Laughlin for all her help, and Ruth Pincoe, for writing the index. Finally, I would like to thank my family in Newfoundland. I am indebted to my mother-in-law and father-in-law, Margaret and Anthony Ryan, for all of their personal support. It is particularly hard to describe the depth of gratitude I have for my parents, Marina and Gerald Bannister. They have read every page of the book, offering insightful comments and wise suggestions on both form and content. I would like to thank my parents for their incredible emotional and material support over the years, and for instilling in me the belief that scholarship is a worthwhile endeavour: my most important seminars took place around their dining room table, where our lively discussions (and arguments) covered the gamut of Newfoundland history. And I would like especially to thank my wife, Patti. Patti took an active part in virtually every aspect of the book, from tracking down sources to proofreading text as it tumbled from the printer. Patti has lived with this book for as long as I have, and it could not have been written without her. Whenever I had doubts, Patti convinced me that the project was worth completing, and she unselfishly offered the support needed to see it through to the end. 1 owe her more than 1 can say.

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'A New Map of the only useful and frequented part of Newfoundland/ by Thomas Kitchin. The map was printed in 1761, and then reprinted in Griffith William's pamphlet An Account of the Island of Newfoundland, with the Nature of Its Trade, and Method of Carrying on the Fishery, published in London in 1765. (Courtesy of the Provincial Archives of Newfoundland and Labrador. PANL, MG 37-3)

St John's harbour, looking toward the King's Wharf, circa 1770. The threemasted vessel in the centre-right is a warship from the governor's squadron. The structure flying the flag is the customs house, while the larger building in the foreground is believed to be a tavern known as "The Ship.' (Courtesy of the Provincial Archives of Newfoundland and Labrador. PANL, B8-3)

St John's harbour, looking east, circa 1780. The long structures in the centreleft are flakes, and above them is the landmark known as 'Gibbet Hill.' The gibbet, which is visible at the top of the hill, displayed the bodies of executed felons on rare occasions; for most of the eighteenth century, it served as a symbol of the naval governor's authority. (Courtesy of the Provincial Archives of Newfoundland and Labrador. PANL, B8-12)

St John's harbour looking west, circa 1785. To the far right, Fort Townshend is visible, while the large ship at the far end of the harbour is the governor's flagship. The men in the foreground are making fish. (Courtesy of the Provincial Archives of Newfoundland and Labrador. PANL, B8-13)

THE RULE OF THE ADMIRALS Law, Custom, and Naval Government in Newfoundland, 1699-1832

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1

Introduction

The past two decades have witnessed a remarkable expansion in the study of the trans-Atlantic links of the British Empire. This literature has provided a wealth of new evidence on how social power was organized in eighteenth-century North America. Building on the work of Bernard Bailyn, historians such as Ian Steele and David Cressy have argued that extensive networks of shipping and communication fostered strong cultural links throughout the Atlantic world.1 While David Hancock and Alison Olson have asserted that merchants drew on a common British culture to exploit commercial opportunities and establish themselves as members of polite society, Eliga Gould has emphasized the close relationship between politics in England and the American colonies.2 In a wide-ranging study of maritime labour, Marcus Rediker and Peter Linebaugh have argued that pirates, sailors, and slaves formed a trans-Atlantic class which created a shared revolutionary ideology.3 This scholarship has drawn heavily on recent studies of both British imperialism and culture in Georgian England.4 Ned Landsman and H.V. Bowen have stressed the complex nature of colonial identities, pointing out that loyalties were often divided between the old world and the new.5 Historians continue to disagree over the socio-political development of the empire - Jack Greene and Gordon Wood present starkly different explanations of the American Revolution - but they tend to consider the colonies as part of a larger Atlantic system.6 As the recent Oxford collection of essays demonstrates,

4 The Rule of the Admirals

the current trend is clearly in favour of seeing the Atlantic ocean as a type of early-modern highway connecting colonists with the British Isles.7 This wave of historiography has passed by Newfoundland. Although most scholars acknowledge the role of the cod fishery in the Atlantic economy, Newfoundland is usually neglected if not omitted entirely from studies of the first British Empire. In a recent collection of essays purposefully designed to present a more inclusive perspective, the cod fishery is completely overlooked.8 John McCusker and Russell Menard have argued that this neglect is unfortunate because territories such as Newfoundland formed an important yet misunderstood part of the Atlantic empire.9 With few exceptions, historians still see eighteenth-century Newfoundland through the lens of cultural exceptionalism as an isolated backwater cut off from the mainstream of Atlantic commerce and politics. As one recent study claims, 'Not only did Newfoundland suffer a unique constitutional history but also its colonial political experience occurred almost in a vacuum/10 This perspective is the enduring legacy of nineteenth-century political reformers, such as Patrick Morris and William Carson, who condemned the island's naval government as utterly lawless, grossly incompetent, and constitutionally anomalous. Thanks to D.W. Prowse's immensely popular History of Newfoundland, the view of the eighteenth century as a dark age of anarchy still dominates Newfoundland history.11 The continued bias against viewing naval government in the context of the eighteenthcentury Atlantic world is also a by-product of the broader tendency among Canadian historians to focus overwhelmingly on the emergence of a 'colonial leviathan' and the concomitant expansion of state regulation in the mid-nineteenth century.12 As Allan Greer has noted, the recent shift in historical research towards a myopic concentration on the post-Confederation period has skewed our understanding of the eighteenth century.13 In strictly official terms, Newfoundland was not a colony but rather a seasonal station for the migratory fishery operated from England. Governed by the commodore of the naval squadron sent each summer to protect the fishing fleet, it was also seen as a valuable source for trained sailors. Unlike settled colonies such as Massachusetts, the island was supposed to remain merely a place for fishing crews to work, where English merchants could extract as much profit as possible with minimal investment in local infrastructure. Historians have charted the impact of this policy through constitutional guideposts - the island had

Introduction 5

no court of civil jurisdiction until 1791, no newspaper until 1807, no civil governor until 1825, and no legislative assembly until 1832 - and the story of retarded development is a well-worn tale.14 A social gulf allegedly separated naval officers serving in St John's and the outports from local merchants: taking a dim view of the island's coarse traders, governors upheld imperial policies that prohibited the truck system commonly used in the fishery.15 While revisionist studies by Peter Pope and Sean Cadigan have offered new interpretations of the seventeenth and nineteenth centuries respectively, the best in-depth accounts of the eighteenth century remain the pioneering work of Gordon Handcock and Grant Head in historical geography.16 The image of desolate outports suffering under rough fishing admirals and a backward legal system has never been seriously challenged. We still know surprisingly little about how Newfoundland was actually governed in the eighteenth century. In comparing the island's development to settled British colonies on the mainland such as Nova Scotia, which acquired representative government in 1758, scholars have argued that Newfoundland was a failed society.17 According to this school of thought, the island failed nearly every basic test of civil society: social and economic stratification; security of private property; a regular judiciary; political representative institutions, including a local legislature or town corporation; and an independent local press. Whether as cause or effect of these conditions, the island endured the barest rudiments of government. Seen in this light, eighteenth-century Newfoundland is suitable only for the study of the privation that necessarily existed prior to achieving appreciable politico-economic development in the nineteenth century. Scholars have tended to assume that the only effective source of state authority was written law: customary or ad hoc arrangements by their very nature engendered weak government and arbitrary courts. The historiography remains mired in an outlook that considers eighteenth-century government exclusively in terms of its apparent deviance from the British colonial model and its dearth of modern forms of social control.18 The problem with this interpretation is that a single model of colonial development never existed. The first British Empire comprised a remarkably diverse range of possessions and territories, from the Puritan regime established in seventeenth-century Massachusetts to the naval administration in eighteenth-century Belize. Jack Greene has argued that Atlantic historians have laboured under the false assumption that the southern colonies were deviant and the New England col-

6 The Rule of the Admirals

onies were normative. Greene argues that it was New England which was exceptional, as nearly every other colony lacked a unified social vision, common political purpose, or sophisticated economic organization. Only in the years leading up to the American Revolution did the development of the various colonies begin to converge, as their societies became increasingly complex.19 Although Greene calls for a more inclusive approach to colonial history, he ignores the Atlantic fishery which employed tens of thousands of people in the eighteenth century. Just as the traditional presumption that New England was normative needs to be challenged, so too does the assertion that the Newfoundland fishery was beyond the pale of law and authority. As in other territories dominated by a single staple industry, the island's legal system was designed in the eighteenth century to facilitate the extraction of wealth for the benefit of those merchants who had invested their capital. Newfoundland was not intended to be a 'city on a hill' where a new society would be built, but neither were the vast majority of British colonial possessions. Recent research on the British Empire has emphasized the role played by borderland settlements, which marked the shifting margins of European colonization. As historians have explored the development of these colonial societies, they have expanded and refined the orthodox boundaries of law and legal culture.20 As Christopher Tomlins points out, the new scholarship in legal history has worked to capture 'the multiplicity of the European worlds that law helped to create.'21 And while colonial legal history has expanded in scope, scholars such as John Brewer and Michael Braddick have worked to overturn traditional assumptions about state formation in the early modern period.22 Eighteenth-century government was essentially reactive, limited by available resources, and shaped by individual initiative.23 As an integral part of the British fiscal-military state, the Royal Navy played a pivotal yet misunderstood role in the development of Newfoundland. Its role in the administration of criminal justice in the Atlantic world remains a lacuna in Canadian legal history.24 Whereas Jim Phillips's masterful studies of eighteenth-century Nova Scotia have demonstrated the influence of the British military on the administration of criminal law in civilian courts, my work focuses on the Royal Navy's involvement in the making of a hybrid customary judiciary which drew on both naval and civil authority.25 I argue that Newfoundland had an effective system of naval government by the mid-eighteenth century.

Introduction 7

To begin with the axiom that the island's legal etymology was inherently anomalous entrenches the false conviction that it must be studied solely in terms of its apparent inadequacies. Newfoundland's legal development certainly followed discernible patterns - the chapters that follow provide an interpretive narrative of Newfoundland from 1699 to 1832 - but it conformed to no predetermined teleology. The inevitable pitfalls of subjectivity remain, in particular the problematic notion of constructing 'a society' to which particular qualities can be ascribed. But to accept the claims of the reformers blocks any chance of analysing the colonial state with any accuracy: the eighteenth-century legal regime cannot be properly dissected with nineteenth-century instruments. When a colonial reform movement petitioned the British government to grant representative government in 1832, it was not pushing at an open door because the island had finally met the criteria of a civilized society. At the heart of this study rests the task of reconstructing the history of a form of governance that remained basically intact for almost a century. In the process, it aims to avoid what David Hackett Fischer has termed the fallacy of presumptive change.26 Before we can assess the changes a system of governance underwent, we must first examine the system itself and the forces that created it. The primary question addressed by this book is, therefore, how was Newfoundland governed in the 130 years prior to the establishment of an elected assembly? SOCIAL AND ECONOMIC

CONTEXTS

This study places legal culture firmly within the material conditions of the island's economy and the paternalistic relations of its society. It employs a framework that considers the interplay between institutions, regulations, and cultural sentiments.27 By viewing law in the context of social power and changing forms of governance, I hope to avoid viewing legal administration only through the matrix of statute law.28 Any study of early Newfoundland must first recognize the gap that existed between official policies designed for a mere fishing station and local practices adopted to deal with the reality of settlement. The limited formal institutions established in the eighteenth century meant that local authorities necessarily had to make alternative juridical arrangements. Reception and enforcement of English law need to be considered in light of the structure of the migratory fishery and the politics of the West Country merchants. To study local governance in turn requires an examination of the social relations of production, in particular the reli-

8 The Rule of the Admirals

ance on wage labour. Many of the distinctive characteristics of the island's legal system, such as the prominent role played by surgeons, appear inexplicable unless analysed in the context of outport life. The range of available resources - in essence who was willing and able to occupy public office - comprised a crucial factor in the island's legal history. The core issue of power bears on the island's history as much as that of any other society. Put simply, the study of governance cannot be divorced from what Elizabeth Fox-Genovese and Eugene Genovese see as the central historical question: who rules whom and how.29 The Atlantic fishery dominated the development of Newfoundland. By the mid-eighteenth century, the migratory fishery had evolved into a hybrid of resident and English-based operations: a significant number of servants and a growing class of planters had begun to settle permanently on the island for the first time. Some year-round settlement had always existed to serve the fishery's needs, but it was becoming increasingly permanent. The population of settlers on the island reached 3,000 in 1720; it doubled in thirty years and nearly doubled again by 1780, to more than 10,000. It is difficult to speak of immigration in any traditional sense of the term. Migration and settlement fell into three different patterns: there were seasonal migrants (those who resided only during the summer fishery and returned to England or Ireland each autumn); temporary settlers (planters who stayed for a few seasons and servants contracted to serve two summers and a winter); and permanent settlers (traders and planters with fixed capital, and servants who stayed after serving out their time). By 1715 the growing presence of permanent settlers was creating sustained pressure for some type of local government beyond the system of fishing admirals. The threshold of settlement needed to support basic governmental institutions was crossed well before the first appointment of a governor and justices of the peace in 1729.30 The island's social structure differed considerably from that of Georgian England. Newfoundland divided socially into three distinct groups: merchants, planters, and servants. No discernible middle class or community of established farmers existed in the eighteenth century. The cod fishery did not become a predominantly Newfoundland-based economy until after the Napoleonic Wars, and the family did not begin to become the dominant social unit until the late eighteenth century. Prior to 1800 capital relied predominantly upon the wage labour supplied by servants contracted out from English and Irish ports, many of whom had no ties or experience with the fishery. Dominated by young,

Introduction 9

single men, the migratory fishery had limited demands for women's labour. For most of the eighteenth century, women made up less than a fifth of the total population. At the top of this society, a caste of merchants dominated the fishery. Based primarily in Devonshire and Dorset, they controlled the flow of capital and sold the extensive supplies needed each spring, such as food provisions, fishing gear, clothing, and alcohol. Newfoundland had a carrying trade operated by sack ships, as well as persistent interlopers from New England, but the West Country merchants commanded the bulk of the fishery's capital. They met each August to determine the price to be paid for cured salt codfish, which they further influenced through the fish culler employed to grade the quality of its cure. After their accounts were settled at the end of the fishing season, most merchants returned to England, where some of them, such as the Lesters of Poole, were prominent members of the gentry. Planters were middlemen who drew on the merchants' capital and contracted wage labour, though merchants also hired servants directly. Typically, planters owned inshore fishing vessels manned by servants hired for set wages. They were divided between those who settled in Newfoundland and others, known as by-boat keepers, who came over each summer; but both performed essentially the same economic roles as merchant client and fishing master. By the mid-eighteenth century, their ventures had become largely dependent on merchant credit: each spring a planter borrowed from a merchant, usually via a local agent, the necessary supplies for the summer fishery; in return, he was bound to sell all of his catch to that merchant's firm. Since merchants influenced both the cost of provisions and the price paid for codfish, planters often found themselves in debt when their accounts were settled in the autumn. Forced to obtain further credit to procure sufficient winter supplies or a passage back to the British Isles, some of them fell into a cycle of debt and dependence in which fish and provisions formed the sole currency. In order to protect their interests, planters searched wherever possible for ways to cut labour costs. Servants supplied virtually all of the labour in the fishery. Throughout the eighteenth century, the terms 'fisherman' and 'servant' were used interchangeably, as officials assumed that all workers served under the direction of a master.31 Craftsmen were regularly hired for monthly wages, but no significant class of artisans emerged until the nineteenth century. Workers in Newfoundland were commonly engaged each spring in ports such as Poole and Waterford - many were also contracted out locally as needs arose - to serve in the Newfound-

10 The Rule of the Admirals

land fishery for two summers and a winter for annual wages ranging from ten to thirty pounds. Known popularly as a 'shipping paper/ the covenant stipulated the servants' duties and the terms of service.32 Wage labour suffused the means of production; servants resisted attempts to impose a system of shares. Despite their reliance on seasonal wages, labourers in Newfoundland fit the standard model of early-modern servants: with few exceptions, they depended on their masters for accommodation, transportation, food, and most other basic provisions.33 Though some of these obligations became codified in statutory law, others remained unwritten customs. For instance, as described in chapter 7, each spring servants were expected to sign on the doctor's books of a local surgeon, chosen by the master, and to pay a fee at the end of the fishing season, usually between five and ten shillings. Working conditions were exacting: during the height of the fishing season, between late June and mid-August, servants could work as much as eighteen to twenty hours a day to take advantage of the run of fish. They were typically organized into crews of six: four men fished in small vessels under the direction of a boats-master; the other two worked ashore preparing the fish under the supervision of skilled splitters and salters. Living conditions were at times brutal, most foodstuffs had to be imported, and there were sporadic reports of near starvation in remote outports. When servants settled up with their masters in the autumn, the stakes were high for both parties. The treatment of servants must also be considered in the context of religion. While the established planters and merchants were largely English, most servants came from southern Ireland. Put simply, the island had a propertied class dominated by one religious faction (Protestants) and a labour force supplied by another (Catholics). Irish servants were a relatively cohesive group with a distinct identity and, for many, a separate language; it was not uncommon for translators to be needed in court. Census records usually separated Irish servants from the rest of the population. Governors portrayed the Irish as a united community, despite the divisions between factions from Munster and Leinster. They reputedly had strong Jacobite sentiments and were repeatedly accused of being disloyal to the British Crown.34 In 1750, for example, Governor Drake had warned that the Irish were 'notoriously disaffected to the Government, all of them refusing to take the Oaths of Allegiance when tended to them.'35 Attitudes of governors ranged from tolerance to outright bigotry, but local authorities did not actively pursue religious persecution until 1755, when Governor Dorrill outlawed

Introduction 11

the celebration of Mass. These regulations went further than the English Penal Laws: penalties for attending Mass included arrest, fines, and house-burnings; Dorrill also outlawed the hoisting of Irish flags.36 These draconian measures, which coincided with the expulsion of the Acadians from Nova Scotia, reflected fears of an Irish rebellion and alliance with the French. When St. John's was captured in 1762, large numbers of Irish servants allegedly sided with the French. Concerns over sedition underlaid the desire to control masterless men. Most of these men were Irish Roman Catholics, a fact lost on no one in the eighteenth century. One of the consistent aims in imperial policy was to prevent surplus labour from accumulating after the summer fishery had ended. Merchants, planters, and their legitimate servants were never prohibited from wintering on the island. But servants who lived in Newfoundland without a written contract to serve under a master were referred to as 'dieters/ a designation that linked idleness with a propensity for crime and social unrest.37 On receiving a merchant's petition about servants absconding after being advanced their winter supplies, in 1764 Governor Palliser ordered that 'no Papist servant man or woman shall remain in any place where they did not fish or serve during the summer preceding/ No one was allowed to give room or board to dieters, and idle or disorderly men and women were to be 'punished according to law and sent out of the country/ presumably as vagrants. 'All fishermen and servants are hereby warned/ he further decreed, that 'all neglects of their duty ... will be punished with the utmost severity of the law/ which was a fine to 'the utmost extent of their wages/38 This proclamation, which magistrates were to read at quarter sessions each year, was renewed by Governor John Byron in 1770 and Governor Robert Duff in 1775.39 The relations of production and exchange contained inherent tensions. A fundamental cleavage separated servants from those who contracted their labour. The point of economic exchange - where masters had to settle accounts and to pay outstanding wages - was a forum in which competing interests regularly collided. From the servants' standpoint, securing their wages represented the most important goal. They also brought complaints to acquire more favourable working conditions, which involved petitions for breach of contract alleging, inter alia, that their masters had acted improperly, broken customary arrangements, or had beaten them severely. Servants utilized a range of extralegal measures to promote their interests: from refusal to work or intimidation of their master, to desertion or assault, and to the seizure of

12 The Rule of the Admirals

goods to secure their wages. From the masters' viewpoint, the chief objective was to limit costs generally and servants' wages in particular. Masters routinely brought suits against servants for breach of contract on the grounds that the specific duties outlined in the shipping paper were either completed improperly or left undone. Masters often accused servants of neglect of duty or insolence in order to justify withholding all or part of their wages. In some cases they seized the season's catch as it lay ready for transport, sold it to another merchant agent, and thereby avoided having to split the proceeds to pay for their servants' wages. Masters commonly relied on the more effective paternalistic practice of using alcohol and other provisions to control labour costs. By advancing servants their wages during the fishing season, usually through the sale of rum, masters could ensure that they had little or no claim for wages left when accounts were settled. With a preponderance of young, unattached men labouring under harsh conditions, with few local ties to kin, the island had the prime ingredients of a violent society. GOVERNMENT AND THE BEOTHUK

The island's naval government had limited contact with the Beothuk, Newfoundland's aboriginal people. Relations between the English and the Beothuks evolved through three stages. Prior to the mid-eighteenth century, the European presence was largely seasonal and overwhelmingly coastal. From the arrival of English fishing ships in the sixteenth century to the expansion of settlement and government in the 1750s, there was relatively little sustained contact between the two cultures. Fishermen rarely made incursions inland beyond a few miles to collect firewood. As late as 1765, the best English map of Newfoundland, drawn by Thomas Kitchin, noted that the interior of the island was entirely unknown.40 The adaptive response of the Beothuks was generally to avoid contact where possible and to withdraw to the area around Notre Dame Bay. The Beothuk population was relatively small - archeological estimates by Ralph Pastore and James Tuck place the aboriginal population at the time of contact at 500-1,000 - and popularized accounts of a native society of more than 15,000 are wildly exaggerated. As English fishing operations expanded and became increasingly year-round, the Beothuks modified the organization of their seasonal movements to rely less upon extended stays along the coast. Retreating inland, they eventually found themselves denied regular access to the ocean, which made them increasingly dependent upon a narrow range of resources.41

Introduction 13

The second phase began in the mid-eighteenth century, when English and Irish settlers began to make deeper forays into the forests for hunting and trapping expeditions. This resulted in more frequent conflicts, since the Beothuks were suspected of repeatedly stealing traps set by furriers. Archeological evidence of Beothuk sites confirms the presence of traps and other implements acquired from settlers. In 1758 a Beothuk girl was brought before the governor and, for the first time, the British organized attempts to establish peaceful relations with the island's principal native group.42 These efforts corresponded with the rapid expansion of colonial administration in Newfoundland, particularly the increase in naval personnel, and the naval government was able to mount formal expeditions to seek out the elusive Beothuk. In 1768 Governor Hugh Palliser ordered Lieutenant John Cartwright to take a party into the interior, but the expedition did not make actual contract with the Beothuks. Restricted largely to indirect measures, Governor Palliser issued a proclamation encouraging settlers to facilitate peaceful relations with any aboriginal with whom they made contact. Successive governors and officials promulgated further reports and directives on how to deal with the Beothuks.43 Native-European relations entered a third and final phase with the massive growth of English and Irish settlement in the early nineteenth century. Cut off from most coastal resources, the Beothuk population, already thinning, began to decline rapidly. At the same time, efforts to establish contact redoubled as a new bourgeois culture sought to protect 'noble savages' from barbarous fishermen and ignorant trappers. In 1811 Governor John Duckworth sent another expedition to make peace with the Beothuks. Accompanied by a party of marines, Lieutenant David Buchan met a group of aboriginals at Red Indian Lake. Though the encounter started smoothly, it was marred by the murder of two marines. Subsequent contact resulted in further violence and the capture of Demasduit, a Beothuk woman, in 1819. Increased awareness led to the creation of the Beothuk Institution, but this social campaign failed in the face of the declining aboriginal population. Shanawdithit, the last known surviving Beothuk, died in a St John's hospital in 1829.44 The government's treatment of the Beothuk reveals a number of important facets of state formation in Newfoundland. Prior to the 1750s local government remained limited to very basic jurisdictional duties. Until the naval government fully emerged in the second half of the eighteenth century, colonial administration was restricted to meeting the settlers' immediate needs: it is not accidental that the efforts to

14 The Rule of the Admirals

make peaceable contact with the Beothuk coincided with the broader campaign to strengthen the island's judicial system. When official expeditions were eventually sent, they were commanded and controlled by naval officers. As in virtually every other sphere of the island's governance, the Royal Navy stood at the administrative centre. As the standard-bearer of English civilization, it became the primary agency of European contact. The bourgeois culture typical of officers at the turn of the nineteenth century foreshadowed the larger cultural shift that enveloped Newfoundland from 1810 to 1830. The establishment of the Beothuk Institution was a by-product of the rise of the same public sphere that undermined the naval government. When the nascent middle class began to voice concern over the fate of the Beothuks, they were also becoming increasingly outspoken about their own desires for greater political rights and freedoms. THE C U S T O M OF THE C O U N T R Y

Customs occupied the centre of the island's legal culture. The custom and usage that emerged in the eighteenth century formed a recognized aspect of the law enforced in local courts. As an unwritten law, a particular custom represented a variant of the common law, provided that it met the criteria of antiquity, continuance, certainty, and reasonableness.45 In 1793 John Reeves, the island's first chief justice, argued that lawful custom had a pre-eminent place in Newfoundland's constitution. Reeves claimed that local customs should have ascendancy whenever they could be ascertained to have genuine usage. 'I am satisfied,' he concluded, 'that for making people happy no less than for doing Justice, nothing is more necessary than preserving inviolate those Rules of Action to which they have been long habituated.'46 At the local level, magistrates routinely invoked custom in their decisions. For example, the same year as Justice Reeves spoke in Parliament, Robert Carter, a justice of the peace in Ferryland district, cited customary law in court. After dismissing a complaint brought by five servants against their master for breach of contract, Carter decreed: 'Ordered that Pitlam, Frady, Quirk, & Evoy, be reprimanded and sent back to their duty they being youngsters and not acquainted with the custom of the country, and that Daniel McGrath be punished with twelve lashes and remain in prison, it appears he was the ringleader.'47 Carter and Reeves asserted the authority of custom in very different settings, but they both presumed the existence of an indigenous body of law that lay beyond the realm of statute or prerogative writ.

Introduction 15

The customs to which Reeves and Carter referred developed within the common law tradition. To be legally binding, a custom had to be neither arbitrary nor contrary to the public good. Lawful customs could not contradict the prerogative of the Crown nor abrogate a positive statute. Equally important, they could not be ambiguous or inconsistent, but had to be clearly established and obligatory. To be recognized in law, a custom had to be ancient in the sense of existing from time immemorial, that is, 'time whereof the memory of man runneth not to the contrary.' Whereas the test of the fact of antiquity was left to a jury, the question of legality remained the prerogative of the bench. Custom was in theory subject to the doctrine of strici juris [according to strict law]: it did not become law until recognized by a court. It is important, then, to stress at the outset that the predominance of local custom in eighteenthcentury Newfoundland was for the most part not unusual under English jurisprudence.48 The type of custom explored in the following chapters had a number of distinct characteristics. It was not popular, in the sense of being a product of plebeian culture, nor was it an early-modern construct used in defence against encroaching capitalist forms of regulation. Customary laws established in Newfoundland were constituted and overseen by officials (naval and civil magistrates), and private citizens from the propertied ranks of society (merchants and prominent townspeople). The customs discussed in this book thus bear little resemblance to the types of cultural expression described by historians such as E.P. Thompson, Bob Bushway, or Robert Malcolmson.49 In short, I deal with legal not popular - forms of custom. Custom was at once unwritten law and state law. I reject the basic interpretive dichotomy of state law (statute) versus folk law (unwritten law).50 State law in early Newfoundland relied extensively on unwritten law: custom and common law formed the foundation of governance; for most of the eighteenth century, statute law was of secondary importance. The case of Newfoundland suggests that statutory codification was not a precondition of a colonial state; rather, the resiliency of the customary legal system actually facilitated state formation. Naval governors were relatively free to respond to local problems using whatever resources they deemed necessary. Without the constraints of the panoply of English institutions, the island's government was divested of many obligations and processes of accountability. And once the naval regime acquired a basic bureaucratic infrastructure in the mid-eighteenth century, it had the means to preserve and legitimize its administration. The fact that many aspects of this customary regime were informal did not make them ineffective.

16 The Rule of the Admirals

Custom was rarely ancient in the conventional use of the term. Although some customs of the fishery stretched back to the beginnings of European presence in the sixteenth century, most of the practices that became part of the colonial state appeared regularly only after 1729. The time needed for a tradition to become an entrenched custom was not as long as some historians have argued. Eric Hobsbawm's stimulating analysis of the invention of tradition allows for too large a gap between genuine customs and invented traditions.51 In Newfoundland, ancient and recent elements of law melded together to form the basis of an effective colonial state. What made a practice legitimate was how it was perceived by contemporaries, not whether it appears to the modern eye to be a fabrication. When Admiral Mark Milbanke looked back on Newfoundland's legal system, he saw the surrogate court as an institution dating from time immemorial. According to a report he presented in 1789, it had been operative long before the passage of the 1699 statute regulating the fishery.52 Yet, as we shall see, the surrogate jurisdiction existed in an inchoate form until the 1730s and was effectively constituted only in 1749. The creation of custom was no more a sham than the making of any other type of authority The reliance on customary sources of authority did not render early Newfoundland unique. The diverse colonies and territories which comprised the first British Empire never adhered to any uniform mode of development; the decentralized imperial system exerted a relatively low level of political control and legal coercion over local societies; and the constitutional doctrine of customary powers figured prominently throughout America. As Jack Greene has argued, it was precisely because local customs had become so deeply entrenched throughout colonial America that the administrative incursions of the British government in the 1760s met such fierce opposition.53 Still, with no governor until 1729, no assizes until 1750, and no local legislature until 1832, Newfoundland obviously did not follow the trends that have long occupied legal historians of British colonies. Although this places some limitations on the study of law, it also presents an exceptional opportunity to view the formation of a colonial state in a society where the typical forms of early-modern social control were absent. Eighteenthcentury Newfoundland represents an instructive case study of how formal and informal sources of authority can coalesce to form an effective system of governance. It demonstrates the malleability of the common law tradition in the face of a social environment that demanded significant adaptation to local conditions. The question addressed in

Introduction 17

the following chapters is not why law in Newfoundland was unique but, rather, how did it function with such a limited range of formal institutions. RETHINKING NEWFOUNDLAND HISTORY

The historiography of Newfoundland presents the eighteenth century as the age when law came to the island through statute and prerogative writ. In charting the progress up the rungs of the reform ladder, historians have defined law in terms of its relative absence. Overshadowing every study of state formation has been the fact that Newfoundland did not acquire representative government until 1832 and the assumption that its legal development was therefore stunted. While they generally agree on these premises, historians have debated whether this delayed institutional evolution was part of a pattern of callous neglect by the British government or whether it formed a natural by-product of a primitive society. The former interpretation represents the orthodox view of the first wave of historiography. Drawing upon liberal ideology, the island's first historians believed that the absence of English law and institutions had critically undermined economic development and cruelly denied Newfoundland settlers their constitutional birthrights. They saw the island's history as based on a fundamental and irreconcilable conflict between those who wanted Newfoundland to have a viable society and economy and those who sought to prevent this from happening.54 The traditional school of thought began with John Reeves, who published the first history of Newfoundland in 1793. A trained jurist, Reeves saw Newfoundland's past as a history of struggle. In what is arguably the most influential statement ever written about Newfoundland, he began his book by setting out the heroes and villains: 'I intend to give a short history of the Government and Constitution of the island of Newfoundland. This will comprise the struggles and vicissitudes of two contending interests - The planters and inhabitants on the one hand, who, being settled there, needed the protection of a government and police, with the administration of justice: and the adventurers and merchants on the other; who, originally carrying on the fishery from this country, and visiting that island only for the season, needed no such protection for themselves, and had various reasons for preventing its being afforded to the others.'55 By establishing the paradigm of repression, Reeves spawned the nationalist outlook which so greatly

18 The Rule of the Admirals

influenced Prowse.56 Prowse's portrayal of the West Country merchants echoed Reeves's perspective: 'Newfoundland settlers of all kinds, from Guy and Baltimore down to the poorest waif from the West of England, had to fight for their lives with the dire hostility of the shipfishermen or western adventurers from England.'57 On the question of government policy, he took a markedly harsher view than Reeves: 'It is no marvel that Newfoundland did not thrive under such a regime; the real wonder is that the settlers lived at all under such oppressive restrictions. But for their allies in New England, doubtless they would have been obliged to abandon their settlements. Our treatment by the British Government has been so stupid, cruel, and barbarous that it requires the actual perusal of the State Papers to convince us that such a policy was ever carried out.'58 In Prowse's hands, Newfoundland's early history became a tale of conspiracy, as mercantile interests blocked political reform and stunted cultural development. 'There can be no doubt/ he concluded, 'that it was the influence of these West Country merchants that retarded the grant of a local legislature.'59 Without local control over resource allocation, the island remained economically backward and socially embryonic. For three-quarters of a century, Prowse's view of history remained basically unchallenged. The major studies completed in the pre-Confederation period - most notably A.H. McLintock's Establishment of Constitutional Government in Newfoundland - focused largely on how British policy had adversely affected Newfoundland. Like Prowse, McLintock narrated how the settlers battled adversity to build a successful society. 'Modest and unpretentious as is its story/ he concluded, 'no student of its history can set it aside without feeling strangely moved at the wonder of human pertinacity in creating from "a great ship" an amazing colony which, in spite of inherited weaknesses and economic disabilities, stands to-day as a testimony to the power of a people to nullify Britain's greatest experiment in retarded colonisation.'60 Joey Smallwood also took up Prowse's themes in his Barrelman radio program, which often presented a nationalist perspective, and in his copious writings in Newfoundland history.61 The influence of Prowse's History reached its zenith in 1968 with the publication of a new provincial textbook. Leslie Harris's Newfoundland and Labrador: A Brief History inculcated tens of thousands of Newfoundland schoolchildren with what was essentially Prowse's view of history.62 Harris adopted the traditional cast of villains (e.g., the West Country merchants and fishing admirals) and heroes (e.g., William Carson and Patrick Morris), as well as the familiar sto-

Introduction 19

ryline of perseverance in the face of political repression and economic adversity. Harris asserts that 'Neither the rule of the fishing admirals, nor the French wars, nor the bad treatment of the Irish made the Newfoundlanders give up hope.'63 With the arrival of Carson, described as a 'brave and unselfish man/ the great reform movement finally defeated the old tyrannical regime when a Royal Charter was granted in 1825.64 'At long last, after more than three hundred years of struggle,' Harris concluded, 'Newfoundland had become a colony/65 In the 1970s this traditional interpretation received its first serious challenge at the hands of academic scholars. Keith Matthews argued that the British government did not conspire to prohibit settlement or stunt the colony's economic growth. Interdependence, not conflict, characterized relations between the different groups involved in the fishery. Market forces, resource endowment, and commercial policies comprised the vital factors in the island's development. When the British government codified its policy with respect to Newfoundland in 1699, in a statute known locally as 'King William's Act/ it signified its intention to permit the growth of local settlement but not the establishment of full colonial government. According to Matthews, this arrangement, which persisted until 1816, was unique within the Empire. He argued that King William's Act was largely ignored in practice, as a rough system of naval justice emerged to maintain order during the summer months. This crude judiciary was fairly effective for a few decades, but it was completely illegal and had no legitimacy whatsoever. Consequently, when a court appeal challenged its authority in 1787, the whole system came crashing down and had to be replaced by a new constitution properly founded in statute law. As for the heroic Carson and Morris, Matthews asserted that the victory of representative government marked simply the success of a colonial elite's ambition. The reformers were mostly recent immigrants from England and Ireland; following political currents in Britain, they concocted a nationalist ideology that bore little relation to the actual circumstances in Newfoundland.66 In the 1980s Patrick O'Flaherty set out to challenge Matthews's thesis. O'Flaherty began by rejecting the notion that the reform movement did not involve local issues and imperatives. Arguing that the reformers were indeed responding to long-standing injustices, he pointed out that English merchants did actually try to block measures that would have benefitted the local population. He asserted that not only were fish merchants and government officials more malevolent than Mat-

20 The Rule of the Admirals

thews had allowed, but imperial policy had a strongly negative impact on the island's socio-economic development. Taking aim at the view that King William's Act was never enforced, O'Flaherty argues that the British government did indeed intend to stunt the growth of the island's population. The legal right to settle and own private property was, he asserts, not recognized until the nineteenth century. The system of naval governors and surrogate courts may have functioned relatively well as a primitive seasonal police force, but it was wholly inadequate as an effective and legitimate form of government. O'Flaherty concludes that the British deliberately subjugated Newfoundland by withholding civil government and the rule of law because they wanted to monopolize the profits of the fishery.67 In the 1990s, Newfoundland legal history emerged as a distinct field with the work of Christopher English. English's interpretation is similar to an earlier revisionist study by Ralph Lounsbury.68 Like Lounsbusy, he argues that the island's legal system had developed according to imperial policy and the minimal requirements for local justice. As an isolated outpost with a small population and limited infrastructure, Newfoundland had no basis on which to support a full system of permanent government and civil courts. Prior to the nineteenth century, the authority of naval governors rarely expanded beyond St. John's, leaving outport communities to get by with only the most basic forms of local dispute resolution. Newfoundland was, in other words, a frontier society.69 Whereas Matthews saw the island's customary regime as a highly illegal yet largely functional judiciary, English argues that meaningful state authority simply did not exist prior to 1815: Settlement had been discouraged since 1699, but it was governance that was withheld. The ad hoc provision of the basic institutions and machinery of a legal system through the exercise of the royal prerogative after 1729 was dictated by the statutory priorities of 1699. In law, this was still true a century later. Newfoundland's dependence on Britain and the insulating protection of the Royal Navy left little occasion for sedition. While English law was applicable in Newfoundland, the statutory legitimacy of her courts for the long run was affirmed only in 1809. Title to land was sanctioned from 1811. A large enough population with a sense of permanence necessary to build a settled society was apparent by 1815. Sedition and riot as tools against the state can only be employed when a state is in place. In the absence of a full-time governor, a civil service, a garrison of more than a few troops, and representative institutions, only the rudiments of a state had been achieved.70

Introduction 21

In a recent article, English asserts that the imperial government had begun to expand its administrative reach in 1788, when it responded with unprecedented severity to an affray in Ferryland.71 For most of the eighteenth century, Newfoundland had a limited legal system because it had limited needs. The fixation on written law has not changed significantly since the nineteenth century. Both William Carson and Patrick Morris argued that the absence of a legislative assembly meant that the island's settlers were denied law. Left to govern itself with only a handful of archaic statutes enacted in England, eighteenth-century Newfoundland fell into chaos and anarchy.72 Recent work in Newfoundland history still concentrates overwhelmingly on statute law and imperial policy. Christopher English limits state law to two sources - statute and prerogative writ - and he argues that custom was the preserve of the outports which lay beyond the pale of state authority.73 Similarly, Sean Cadigan's seminal economic study treats common law and local custom as largely unimportant, and stresses the impact of statutory law on local governance.74 Although Cadigan discredits many of the stubborn myths inherited from the nineteenth-century reformers, he still sees law primarily through the prism of statute. And while Patrick O'Flaherty concedes that a rough type of functional government did exist in the eighteenth century, he argues that it was an inadequate and illegitimate system which failed miserably to uphold law or practise jurisprudence.75 O'Flaherty claims that the lack of proper legal institutions fatally corrupted the island's constitutional development. Like Morris and Carson, O'Flaherty places an extremely heavy emphesis on imperial statutes, particularly King William's Act, and he largely dismisses local custom as an unlawful and ineffectual source of authority.76 Taken together, the different studies of the eighteenth century share a common approach towards the island's legal development. Statute law and local customs are treated as inherently separate entities: the British government used the (enlightened) former to supplant the (backward) latter. In the conventional chronology, the island's legal system evolved through several stages: anarchy reigned prior to the appointment of a governor and civil magistrates in 1729; thereafter a ramshackle and illegal system of local government operated for two generations; in 1787 this regime suddenly collapsed when an appeal in England undermined its legitimacy; in 1791-2 the British government implemented major reforms which overhauled the judiciary and placed it for the first time on a sound legal footing; and after 1815, the local government crumbled in the face of a reform movement domi-

22 The Rule of the Admirals

nated by middle-class Catholics who campaigned successfully to end the legal restrictions on their civil rights and to establish an elected assembly. Newfoundland's experience is seen not only as unique, but also as part of a larger pattern of failure. The local customs which underpinned the shaky system of naval rule were poor stand-ins for the rule of law that settlers enjoyed throughout the British Empire. An alternative interpretation is presented in the following chapters. It rejects the notion that the system that operated from 1699 to 1832 was necessarily illegal, illegitimate, or ineffective. Law did not arrive in neat stages but was continually established, negotiated, and contested. Episodes of reform and reaction, such as the feud between the justices and the fishing admirals in the 1730s, illustrate how effective governance emerged out of the struggle for authority. Such contests were not between law and lawlessness but among competing sources of law; conflict and compromise determined much of what was enforced or disregarded at the local level. No binary division existed between naval and civil authority or written law and local custom. Rather, the legal system comprised an amalgam of four sources of law: common law, statute law, prerogative writ, and local custom. Despite the limited institutions allowed under statutory law and imperial policy, an effective system of naval government, based on customs adopted under the rubric of the common law, developed to meet the needs of those in power. The Royal Navy's role in the administration of law began in the early eighteenth century, grew significantly in the 1730s, and expanded dramatically in the mid-eighteenth century. Naval government dominated Newfoundland from the 1750s until a reform movement undermined its authority in the 1820s. While its structure differed from that of other colonial regimes, its function remained essentially the same. Power and authority flowed through institutions and customs designed to uphold the social order and to enforce the rule of local government. The case of early Newfoundland indicates that state formation was based on the available social, professional, and material resources. On the one hand, no landed gentry or middle class existed to fill the bench or magistracy, nor were religious clergy yet entrenched throughout the island. Fishing admirals and merchants were too busy during the short fishing season to become actively involved in local government, and many of them returned to England each autumn. Equally significant, the lack of a legislature, local press, and trained lawyers left the island without the tools typically used in common law jurisdictions to operate and monitor civil courts. The rise of a bourgeois public sphere and an

Introduction 23

independent press fostered a reform movement that revolutionized local politics in the late 1820s and eventually undermined naval government. On the other hand, the Royal Navy filled the basic needs for the administration of law. English historians have thoroughly discredited the traditional view of the Georgian navy as corrupt and inefficient, and its position in Newfoundland requires a complete reappraisal. Far from conforming to the caricature of quarter-deck despotism, the Royal Navy effectively managed the largest industrial organization in the Western world.77 The commodores of the annual squadron proved willing and able to administer law and government at St John's. Naval officers convened courts throughout the outport districts, often alongside civil magistrates, and sat on the bench as surrogate judges. The Royal Navy was the engine of law and authority in Newfoundland. Its administrative infrastructure formed the mainstay around which the island's district system was built. The watershed in the island's legal development - Commodore Rodney's reforms in 1749-51 - drew the Royal Navy deeply into the local administration of justice and precipitated a revolution in government. As naval government expanded, the fishing admirals were no longer an independent force, and they generally became co-opted by the local magistracy. Surgeons were the other readily available resource: they were often appointed as justices of the peace, serving a prominent role in the judiciary, and they replaced the coroner's office as the principal agency for investigating homicides. Authority remained diffused and justice varied somewhat from district to district, but governors exerted a dominant influence whenever they chose to intervene locally. In the second half of the eighteenth century, the courts reached into nearly every outport along the coasts under English control. The emergence of naval government forms the core of the first part of this book, while the second half covers its operation from the 1750s to its demise eighty years later. The following chapters employ two basic approaches. Chapters 2, 3, 4, 5, and 8 examine the development of local government and the judicial system. They use case studies and textual analysis to investigate the salient events and trends from the passage of King William's Act in 1699 to the establishment of representative government in 1832, tracing the long rise and eventual fall of naval government in Newfoundland. They divide this era into five periods: the operation of the fishing admirals system and the reliance on ad hoc arrangements (1699-1728); the appointment of a naval governor and the battle for local authority between fishing admirals and

24 The Rule of the Admirals

justices of the peace (1729^18); the revolution in local government and the solidification of naval rule (1749-51); the apex of naval government and the expansion of state authority (1752-1815); and the growth of a colonial reform movement and the campaign against naval government (1816-32). Cycles of war and peace in large measure determined the course of legal development. Whereas wars prevented the Royal Navy from becoming heavily involved in the island's governance, outbreaks of peace saw a resumption of its role in the administration of law. The judicial system fell into relative atrophy during the War of Jenkins' Ear and the Seven Years' War, for example, but developed remarkably during peace. All of the major legal reforms occurred during periods of peace, with the exception of the American Revolutionary War, during which concerns over the defence of Newfoundland precipitated an expanded military presence. The French Revolutionary and Napoleonic Wars engendered a socio-economic transformation which spawned a reform movement in St John's, but the campaign for representative government did not gather steam until after 1815. Chapters 6 and 7 examine how the naval government enforced its authority through the administration of law. They address the penal system at the St John's assizes and in the district courts from 1750 to 1792. Chapter 6 assesses the use of mercy and terror at the assizes in light of the broader patterns of punishment. It places hangings in the context of a society marked by sectarian and class tensions. Public executions assumed a political as much as a penal significance, as local authorities responded to fears of sedition among the Irish Catholic community. Chapter 7 studies the use of noncapital punishment generally, and whippings in particular, in the context of master-servant relations and paternalistic authority. It argues that the era of naval rule saw a significant use of corporal punishment designed to discipline servants working in the fishery. Far from being a blunt weapon of class rule, whippings and other penal sanctions were carefully employed to enforce the social order with limited costs and disruptions to the fishery. The decision to focus on punishment as an aspect of governance reflects three factors. First, the operation of the courts merits in-depth examination because judicial administration constituted the principal means through which official authority was exercised. With neither a legislature nor a town corporation, Newfoundland had no formal political bodies outside of the governor's office, the sessions held by justices of the peace, and the grand jury. Second, within this system, punishment comprised a central feature of judicial business. The

Introduction 25

endemic fears of social unrest voiced by merchants and officials are best explored through a survey of pardons and punishments. This approach confronts governance at arguably its most important point: the discretionary use of legal violence. Third, other forms of social regulation - e.g., masters' extralegal efforts to exert control over their servants - remain extremely difficult to discern from the existing archival records. Potentially rich topics, such as the use of alcohol to manage social relations, cannot be mined very deeply. The records of punishments meted out by the courts offer one of the few avenues through which to explore the tensions that lay at the heart of Newfoundland society.

2

The Fishing Admirals System

The image of early Newfoundland remains captured in a famous caricature written by D.W. Prowse. In a statement that has become part of the island's folklore, Prowse asserted: 'I will try and describe the fishing admiral, as he appeared to our ancestors, clothed, not in the dignity of office, not in the flowing judicial robes, not in the simple and sober black of the police magistrate, but in the ordinary blue flushing jacket and trousers, economically besmeared with pitch, tar, and fish slime, his head adorned with an old sealskin cap, robbed from an Indian, or bartered for a glass of rum and a stick of tobacco. The sacred temple of law and equity was a fish store, the judicial seat an inverted butter firkin. Justice was freely dispensed to the suitor who paid the most for it. In the absence of a higher bribe, his worship's decision was often favourably affected by the judicious presentation of a few New England apples.'1 Yet Prowse had never witnessed such a scene, nor had he ever met a fishing admiral. He was repeating an account written two generations earlier by Patrick Morris, a political reformer who had likewise never observed an admirals' court.2 Morris himself was relying on an earlier history written by Lewis Amadeus Anspach.3 Both Morris and Anspach, in turn, had been heavily influenced by John Reeves's seminal History of the Government of the Island of Newfoundland, which drew on official reports of alleged corruption.4 Handed down from one generation to the next, this apocryphal portrait was based on little more than local legend and political hearsay,

The Fishing Admirals System 27

but it has become a central feature in Newfoundland historiography.5 Paragons of venality, the fishing admirals symbolized the essence of the island's society: a wild frontier beyond the pale of law and justice. As a generation of schoolchildren learned from their textbooks, it was the admirals, along with their merchant allies, who were responsible for the cruel oppression of the settlers.6 The fishing admirals were, in other words, the villains in the story of early Newfoundland. However, in spite of their celebrated role in the island's history, we know remarkably little about the fishing admirals. Keith Matthews's watershed critique of traditional historiography challenged many of the stubborn myths inherited from Judge Prowse and his successors, particularly the notion that the island's 'retarded colonisation' (to borrow A.H. McLintock's phrase) was due to an active campaign against permanent settlement waged by the West Country merchants; yet Matthews's work revealed little about the fishing admirals or their famously corrupt courts.7 Like other scholars, Matthews faced the problem of a lack of archival evidence: no separate series of court records exists for study, leaving historians with only fragmentary references scattered throughout the extant primary sources. Subsequent research has covered a wide range of topics - from historical geography to merchant-settler relations - but sheds no new light on the fishing admirals.8 Recent studies of law and government focus almost exclusively on the powers vested in the fishing admirals by King William's Act of 1699 and the concomitant jurisdictional issues.9 As a result, we know a great deal about what the admirals were supposed to do in theory but virtually nothing about what they actually did in practice. Despite this paucity of knowledge, they remain a vibrant part of the island's popular history and a staple of the thriving cultural tourism industry.10 And we know even less about the role others might have played in maintaining law and order. This chapter confronts the question of how law was administered during the era of the fishing admirals. It explores the history of the admirals from 1699, when their duties were codified in King William's Act, through the operation of the legal system prior to 1729, when the British government appointed the island's first naval governor. In probing beneath the veneer of official reports, which must be treated with caution, the chapter provides a systematic analysis of the fishing admirals' courts. Evidence from the extant proceedings contrasts sharply with the admirals' reputation as cruel despots ruling outports with the cat-o'-nine-tails. An examination of the relevant archival sources has

28 The Rule of the Admirals

turned up no examples of any fishing admirals' court presiding over a criminal case or ordering punishments for criminal offences. Evidence indicates that they largely restricted their activities to property law, particularly disputes over ships' rooms and other issues directly relating to the operation of the cod fishery. The admirals held few sessions, however, and evidence suggests that they were never very active in performing their juridical duties. Far from being the scourge of Newfoundland history, they appear to have been much the same as their mercantile peers. During their visits each summer, they had neither the time nor the disposition to discharge their full statutory responsibilities. When they did become involved in legal cases, they generally kept within the confines of King William's Act, which significantly limited the scope of their judicial authority. Before the appointment of a governor and magistrates in 1729, there were no constables, justices of the peace, or any other civil law officers in Newfoundland. The British government constituted no courts other than the sessions of the fishing admirals and the appeals to the naval commanders. Based on the assumption that the island was a mere fishing station without permanent or even year-round settlement, official British policy saw no need for law because there was no demand. In other words, without property, in the Lockean sense of both citizens and capital, there could be no law. This perspective may have fit the seventeenth-century migratory fishery, but it did not reflect the society that had developed by 1715. The fishing admirals system did not meet the needs of most merchants and planters working in Newfoundland. Within a year of the passage of a statute in 1699, its provisions were contravened or ignored. Thereafter a thirty-year cycle of petitions, reports, and complaints about the inadequacies of the island's constitution failed to move the British government to introduce new legislation. At the local level, however, events transcended statute and official policy. Informal courts and customs developed as substitutes for English institutions: a series of ad hoc arrangements addressed the island's basic needs and established the precedents for the legal system that later became firmly entrenched. The most important aspect of this process was the judicial function of the Royal Navy, as officers extended their role well beyond the appellate jurisdiction authorized by statute law. Newfoundland was distinct in its lack of the conventional fixtures of the colonial state, but those living on the island still drew on a shared legal culture and common law tradition. In 1723 a committee at St John's independently established a local court to dispense justice, for

The Fishing Admirals System 29

example, and individual initiatives by settlers ensured that some steps were taken to combat lawlessness after the Royal Navy departed each autumn. Yet the naval commodore and his officers represented the only force capable of consistently enforcing English authority throughout the outports. In essence, to study the legal history of early Newfoundland is to chronicle the presence of the Royal Navy. Despite the fishing admirals' celebrated position in the island's history, they did not play a central role in its legal development. THE L E G A C Y OF THE PROPRIETARY COLONIES

This history of the governorship in Newfoundland and Labrador begins in 1610, with the appointment of its first governor, John Guy. An active member of the mercantile community in Bristol, Guy had written a tract advocating English settlement in Newfoundland after visiting the island in 1608. With the backing of the London and Bristol Company, he successfully petitioned the English government for permission to establish a colony in Newfoundland. Guy set sail from Bristol with a small group of settlers, landed at Newfoundland in August 1610, and founded a settlement at Cupids in Conception Bay. Guy's colony initiated the era of the proprietary governors; his settlement was not an official colony but rather a commercial enterprise sanctioned by the Crown. It was not a private business in the modern sense of the term. The legal basis of colonization was the charter issued by James I to the London and Bristol Company, a joint-stock company in which forty investors had bought shares. This grant did not bestow colonial status - Newfoundland did not receive a Royal Charter until 1825 - but it did confer certain rights, liberties, and powers. Like the charters governing other English colonies in America, it formed a type of public contract between the sovereign and the individuals or corporation responsible for overseeing the settlement. As governor of a chartered colony, Guy assumed an array of legal responsibilities. To ensure that their investment remained secure, the shareholders issued a detailed list of instructions ordering Guy, among other things, to prevent idleness among the colonists and to ensure that religious services were held regularly. Troublemakers were to be sent back to England on the first available ship and publicly discharged from the company. Guy's colony was not beyond the pale of English law, therefore, but operated within a specific set of written laws and regulations.11 There were at least five other serious attempts to establish colonies in

30 The Rule of the Admirals

seventeenth-century Newfoundland, however, and this created a tangled web of political claims and legal jurisdictions. Whereas George Calvert (Lord Baltimore) was granted an individual charter to found a colony at Ferryland, other proprietors, such as William Vaughan, had purchased land directly from the London and Bristol company. When Sir David Kirke became co-proprietor under a charter granted to the Company of Adventurers in 1637, he assumed the position of governor and took possession of Ferryland. But Kirke made dangerous political enemies and alienated many West Country merchants. Cecil Calvert (the second Lord Baltimore) reasserted his family's claim to Ferryland: he successfully pursued lawsuits against Kirke, who died in an English prison 1654, but did not acquire local control over the colony. The rule of the proprietary governors never became firmly established because their colonies did not prosper. Few of the seventeenth-century ventures ever returned a profit, leaving many investors bankrupt, and the lack of revenue inhibited the governors' ability to develop local infrastructure. The costs of colonization were high - Lord Baltimore had spent more than £20,000 on his venture - and most settlements never became economically self-sufficient. And while the island's population remained too small to support formal government institutions, the proprietary governors and their backers were often preoccupied with affairs in England. They were in many respects a product of their times - seventeenth-century England experienced dramatic social and political upheaval, culminating in the Civil War and the execution of Charles I in 1649 - and this instability affected their efforts to garner support for the colonization of Newfoundland. The proprietary governors appear to have left little legacy for the naval governors to follow; indeed, the customs of the migratory fishery, such as the fishing admirals system, exerted a far greater influence over the island's constitutional development. KING W I L L I A M ' S ACT AND I M P E R I A L POLICY The history of written law in eighteenth-century Newfoundland begins with the 1699 Act to Encourage the Trade to Newfoundland. Known popularly as King William's Act, it codified the customary regulations established in the Western Charters first granted to English merchants in 1634.12 It confirmed the tradition that the master of the first English ship to arrive in a Newfoundland harbour after 25 March was by right the admiral of that port for the upcoming fishing season. The second and third masters then became the vice- and rear-admirals respectively.

The Fishing Admirals System 31

Admirals had the choice of the best fishing rooms - i.e., tracts of the waterfront used for wharves, flakes, and stages - and were empowered to settle disputes over the possession of the remaining premises. Like the earlier charters, the Act contained regulations for the conduct of the fishery, such as prohibitions against damaging stages, stealing fish nets, or selling alcohol on Sunday.13 It also reaffirmed the existing method for dealing with serious criminal offences: suspected felons had to be brought to England for their trial. King William's Act stipulated that all robberies, murders, felonies, and capital crimes committed in Newfoundland each year after 25 March were to be tried, determined, and judged in any county of England, under assize commissions of oyer and terminer and gaol delivery. These offences were to be tried according to the same laws and in the same manner as those committed in England. The fishing admirals, in order to preserve the peace and good government in their harbour, were enjoined to ensure that all of the Act's regulations were enforced, and to keep a written journal for each fishing season. To augment this rather limited legal regime, King William's Act offered one significant reform: the naval commanders of the warships sent to patrol Newfoundland each summer could act as appeal judges to the fishing admirals' decisions.14 The implications of this provision extended much further than the Board of Trade had originally envisaged, as the Royal Navy eventually became the dominant judicial and political force in eighteenth-century Newfoundland.15 King William's Act reflected imperial policy with respect to Newfoundland. The English government saw the island not as a colony but rather a seasonal fishing station to be used solely for the benefit of the west of England fishery.16 Patrick O'Flaherty has made much of the fact that the terms 'plantation' and 'colony' were never used in King William's Act to refer to Newfoundland, which was usually called a 'country,' that is, an expanse of land or a region.17 Nonetheless, the government's view was not as severely restrictive as O'Flaherty indicates, for the island was at times referred to as a colony in the eighteenth century. In 1730, for example, the Duke of Newcastle asked the Board of Trade to consider 'what further directions are proper to be given for the effectual execution of His Majesty's most gracious intentions, for the preservation of peace and good order among His subjects in that Colony.'18 Although never a very productive source of sailors, Newfoundland was seen as a nursery for seamen - one in five men brought over each summer had to be a green man - and the Admiralty played an important role in its administration.19 Prior to 1811 the right to settle

32 The Rule of the Admirals

and to hold property was in theory subordinate to the needs of the fishery, although in practice property rights were often recognized and enforced. Settlement continued to expand throughout the eighteenth century, often supported by the West Country merchants and traders, though its legal status remained uncertain and governors made sporadic and largely ineffectual efforts to restrict property use to the fishery.20 As a number of scholars have argued, the traditional myth that King William's Act actually prohibited settlement has no basis in fact.21 While some year-round habitation was inevitable and indeed necessary for the operation of the migratory fishery, the full trappings of colonial government were not. Conventional wisdom held that the island's limited development did not merit the institutions normally allocated to settled colonies. In his treatise on the British Empire, John Oldmixon pronounced that in Newfoundland, 'there is no need of much Law, for the inhabitants have not much land and no money.'22 British officials took a pragmatic view of Newfoundland, remaining sceptical about granting the island its own legislature right up to the eve of representative government in 1832.23 But the administration of most colonies in the first British Empire was largely ad hoc, leaving local communities with a relatively limited amount of official supervision and regulation. London was invariably wary of initiating policies that would place added burdens on the treasury.24 Between 1689 and 1763 Parliament passed relatively few acts relating directly to the management of individual colonies. In the wake of the consolidation of the navigation system in 1696, the English government focused on defending specific domestic industries against foreign and colonial rivals. By protecting the West Country interest in the cod fishery, King William's Act formed part of a broader policy of using statutory law to promote English commerce.25 THE LIMITS OF STATUTORY LAW

From the perspective of the actual governance of Newfoundland, King William's Act created a number of serious problems. Its provisions did not correspond to the island's actual economic development - the increasingly complex cod fishery encompassed migratory and resident operations, West Country merchants, and year-round settlers - and, as Patrick O'Flaherty argues, it cast a long shadow over the island's legal development.26 It prescribed no specific penalties or punishments for those who broke its regulations or committed crimes other than felo-

The Fishing Admirals System 33

nies. It limited local authority to fishing admirals and naval commanders, neither of whom had formal commissions of the peace. They had no specific instructions to issue warrants, take depositions, or bind persons in recognizance. The admirals were reputedly too busy with their own fishing operations and seen as too biased in their judgments to maintain law and order. After the fishing fleet and naval squadron had left in the autumn, no legal authority existed whatsoever. The system of transporting suspected felons back to England proved extremely difficult to carry out: in most cases the logistics and costs of apprehending and incarcerating offenders, and shipping them when the fleet returned to England, outstripped the resources of both the visiting naval commanders and the fishing admirals.27 A confidential report commissioned by the British government clearly outlined the problems with relying on the admirals to maintain law and order. In 1701 George Larkin, an English barrister sent to assess colonial policy in North America, spent a month in Newfoundland during the height of the fishing season. Larkin travelled from Carbonear, in Conception Bay, to Fermeuse, on the Southern Shore, and spent considerable time in St John's, where Arthur Holdsworth, master of the Dartmouth ship Nicholas, was admiral of the harbour. He reported that Holdsworth openly broke the regulations in King William's Act designed to ensure that new fishermen were brought over each year, thereby undermining the policy that the island should produce an annual pool of potential recruits for the Royal Navy.28 All along the coast, in fact, the fishing admirals neglected to hold regular courts or keep proper journals. Larkin asserted that the admirals deliberately abandoned their duties so that the judicial work fell to the commanders of visiting warships. Revealing that a nascent naval surrogate system had already taken root, he reported: 'It hath been customary for the commander in chief upon complaints to send his Lieutenant to the several harbours and coves to decide all differences and disputes that happen betwixt commanders of merchant ships and the inhabitants and planters and betwixt them and their servants/29 The custom of holding such informal court sessions dated back at least to 1680, when Captain Robert Robinson of HMS Assistance presided over the prosecution and punishment of four men for destroying French fishing installations. Attended by three merchants who served as assessors, the court ordered the men to be ducked (i.e., dunked into the ocean and hauled up again) from the yardarm of the Assistance..^ Although Larkin approved of the current officers'

34 The Rule of the Admirals

efforts to administer law, he claimed that previous courts had been unlawful proceedings at best. In addition to accepting bribes, officers reputedly never kept regular minute books or registers of their decisions. Larkin compiled an abstract of the known rules and decisions and left it, along with a commission for trying pirates, to be used by future officers.31 The report stressed the need to appoint civil magistrates to administer law after the fleet had departed. According to Larkin, masters and servants became locked in battles each winter that frequently erupted into violence; he proposed that one of the prominent inhabitants in each harbour should be appointed as a magistrate. He further advised that a person with formal legal training should be sent to serve annually under the naval commodore or to settle permanently on the island as a judge advocate.32 This magistrate could then summarily hear and determine all the disputes which arose each year by travelling on a circuit to the major harbours. Upon receiving Larkin's report, the Board of Trade tried to persuade the government to draft a new statute for the island's fishery. The committee of trade informed the House of Lords that nearly every clause in King William's Act was being violated because of the lack of penal sanctions and the means of enforcement.33 No action was taken, however, and the outbreak of the War of the Spanish Succession preoccupied the English government.34 Following Larkin's report, some officers began to keep court records. Naval officers in this sense were the lieutenants, commanders, and captains of the Royal Navy squadron - occasionally this group included midshipmen who had not yet passed for lieutenant - and they are not to be confused with the civilian 'naval officers' appointed as recorders of ship movements in colonial ports, who were overseen by the Board of Customs Commissioners and had no affiliation with the Royal Navy.35 In 1704 Captain Jonathan Bridge, commander of HMS Loo and commodore at St John's, convened a court along with the local fishing admirals, in which they settled the disputed title to a plantation in Ferryland.36 Propertied interests generally supported the move towards stronger local government. In 1705 a group of prominent fish merchants petitioned the English government to establish some type of magistracy in Newfoundland. Whitehall asked the Board of Trade for advice on the issue of appointing constables and magistrates.37 With several outports captured as a result of French raids the previous year, the House of Commons also ordered the Board of Trade to present an account of the Newfoundland fishery. Issued in 1706, the report reiter-

The Fishing Admirals System 35

ated Larkin's findings and recommended that Parliament introduce legislation to decree penalties for offences committed during the fishing season. Naval commanders and the fishing admirals were both to be empowered to levy fines according to the nature of the offence, up to five pounds or, in cases of nonpayment, to imprison transgressors for ten days.38 Proposals for statutory reform received little support in Parliament, leaving the Board of Trade to make do with existing legislation. It sought a legal opinion from the solicitor general on how to administer King William's Act. Asked whether penalties could be imposed for violating a statute which did not specify any punishments, the Solicitor General replied that offenders could still be legally punished. Such persons could be fined at the discretion of the court, upon being found guilty on an indictment or information, for acting contra formam statuti.39 In criminal pleading, contra formam statuti was the standard term used in indictments brought for an offence created by statute and did not denote any penalties for breaking King William's Act other than those already in the Act itself - that is, none. With this rather thin assurance, in 1708 the British government issued a proclamation by order-in-council, ordering the strict enforcement of King William's Act. It explicitly censured the fishing admirals for neglecting their duty and directed those living in Newfoundland to bring to punishment all those who broke the regulations in King William's Act.40 Meanwhile, problems with the army garrison at St John's compounded the difficulties of maintaining order. Complaints about the conduct of army officers stationed in Newfoundland had arisen repeatedly after a company of foot had arrived from England in 1698. Interservice rivalry compounded the problem, because the garrison commander was commander-in-chief only during the absence of the naval commodore. A labyrinthine controversy had begun in 1704, when the naval commodore suspended Captain Thomas Lloyd, the garrison commander, and appointed Lieutenant John Moody in his place. In the subsequent claims and counterclaims, which involved the Church of England minister and many of the townspeople, army officers were variously accused of embezzling funds, hiring out soldiers as labourers, beating civilians, and holding illegal court proceedings.41 In the most serious case, Lieutenant Moody was court-martialled for ordering the fatal whipping of a woman confined in the garrison fort. A military tribunal convened by the naval commodore dismissed the charges but problems persisted.42 In 1708 Captain John Mitchell assem-

36 The Rule of the Admirals

bled another court in St John's - this one attended by the local fishing admirals, merchants, and prominent townspeople - at which Captain Thomas Lloyd, who had been reinstated as commander of Fort William, was tried and acquitted of misconduct. After the French captured St John's, Captain Lloyd was taken prisoner and died in captivity.43 In the wake of these problems Newfoundland received the appointment of its first nominal governor. John Collins, a civilian who had commanded the local militia since 1706, was delegated governor and commander-in-chief from Ferryland to Carbonear island, effectively making him Lloyd's successor. Collins took great pains to stress his title and the fact that several merchants had supported his appointment; he later petitioned the Queen for financial compensation for his service as governor.44 Collins's authority did not reflect any shift in policy, however, and his powers extended only to ensuring the upkeep of forts and coastal defences. It was Captain Joseph Taylour of HMS Litchfield who had decided to appoint Collins. The Royal Navy remained the dominant military power and legal authority in Newfoundland, though the army officers were unwilling to be passed over. In 1709 Captain John Moody concocted his own scheme to reform the island's government. In a memorial sent to the Board of Trade, he proposed that the garrison commander be present at the fishing admirals' courts, with the minutes taken by a clerk acting as a notary public.45 Moody's persistence paid off when the government appointed him commander of the garrison at Placentia, which France ceded to Britain under the Treaty of Utrecht. Placentia eventually became a power base from which army officers periodically asserted their independence from the commodore at St John's.46 The principal by-product of the inadequacy of King William's Act was a substantial expansion in the judicial function of the Royal Navy. Prior to the royal proclamation in 1708, which authorized punishment for offences against King William's Act, the Board of Trade had made a presentation to the Privy Council on the state of Newfoundland. Condemning the garrison commanders as inept and corrupt, it pointed out that no naval officer had been accused of impropriety, and argued that the commodore should be given a commission to act as commander-inchief with an indisputable power to command on land. In addition to checking the excesses of the army, this would provide a source of speedy redress for the inhabitants and fishermen.47 Citing the solicitor general's opinion on the enforcement of King William's Act, the Board of Trade advocated extending the powers of the naval commodore,

The Fishing Admirals System 37

requesting that 'he be fully impowered thereby to redress all such abuses and offences as shall be committed at Newfoundland, contrary to the said Act in such Manner as the same have formerly been or lawfully may be redressed or punished according to the known Usage or Customs there/48 In cases where customary laws were uncertain or inapplicable, the commodore was to submit the suspect's name and an account of the incident to the English government, so that offenders could be proceeded against in England.49 Such proposals reflected not only the increasingly active role played by officers in administering law in St John's, but also the fact that government ministers saw the Royal Navy as the primary means for maintaining order in Newfoundland. In 1711 Captain Josias Crowe, naval commodore and commander-inchief, convened the island's first known legislative council. From August to late October he presided over a series of public meetings attended by masters of fishing ships, merchants, and prominent townspeople, which approved, in his words, 'several laws and orders made at St. John's for the better discipline and good order of the people and correcting irregularities.'50 Known popularly as 'Captain Crowe's Law,' the sixteen provisions contained both general regulations and specific warrants. In addition to rulings on property disputes and orders for maintaining coastal defences, the articles stipulated that servants who hired themselves out to more than one master were to be fined two pounds or whipped three times in public.51 Captain Crowe also forbade the selling of liquor on Sunday, upon a fine or forfeiture of forty shillings for the first offence and eight pounds for the second, and imposed a fine of one shilling for each person found in a disorderly house.52 Other measures went unrecorded: in his returns to the heads of inquiry (the instructions assigned annually to the naval commodore), Crowe simply stated that he had suppressed debauchery 'by threats, punishments, and other necessary means.'53 Though Crowe had not acted according to any known instructions, his initiatives established an early precedent for the customary legal system in which the naval commodore - and, after 1729, the island's governor - consulted with merchants and townspeople, and took steps to meet the perceived needs for law and order.54 When Sir Nicholas Trevanion, captain of HMS York, arrived in 1712, he operated this customary system as if it had dated from time immemorial. Like his predecessor, Trevanion convened an ad hoc legislature in St John's - attended by the fishing admirals, merchants, and other prominent inhabitants - which debated and adopted six by-laws. He

38 The Rule of the Admirals

reported that he held a general court twice a week, assisted by the fishing admirals. To account for its operation, Trevanion stated simply, 'whenever differences happened, we endeavoured to settle it/55 During his stay he received complaints about neither the conduct of the fishing admirals nor the implementation of King William's Act. To enforce Sunday observances, he posted orders, appointed a watch, and punished offenders. 'I leave this Island in a very good condition/ he concluded, 'and the people very well satisfied.'56 Such a sanguine voice was rarely heard from Newfoundland. Over the next decade the Board of Trade received a steady barrage of petitions on the need for civil government, regular courts, and winter magistrates. As the extracts quoted by John Reeves illustrate, these reports all repeated the same basic point: the admirals were unfit for any type of public office.57 IN SEARCH OF THE FISHING A D M I R A L S

The litany of complaints about the admirals' conduct tells us a great deal about how they were perceived by some British officials but virtually nothing about who they were or what they actually did during the summer fishery. Perhaps the most accurate answer to this question is that these men were no different from the island's fishing masters, from whose ranks they were drawn. Masters in this sense denoted captains of fishing ships who made the annual voyage from England to Newfoundland: some were wealthy landowners, but most were lesser merchants with few pretensions to gentility. While the vast majority of these men remain anonymous in official records, exceptional families, such as the Holdsworths of Dartmouth, produced a succession of prominent admirals.58 In the life of Arthur Holdsworth we can trace the career of a fishing admiral in the early eighteenth century. At the age of thirty-two he assumed a prominent role in the family business, sailing to Newfoundland with his brother in their ship the Nicholas; by 1701 he had become admiral of St John's harbour, a position he held off and on for the next ten years. He soon asserted himself in local society, creating a minor controversy when he duelled with an army officer over a perceived slight. The officer was later accused of cowardice but the Holdsworths did not suffer from the potential scandal. As the nearest thing to gentry on the island, the family had little to fear from anyone other than the commodore. Highly unpopular among their competitors, the clan expanded their operations into carrying passengers to Newfoundland,

The Fishing Admirals System 39

thus creating temporary labour gluts.59 Holdsworth also became heavily involved in the petty politics which marked early St John's. He petitioned against competitors, curried favour with the garrison commander in return for contracts, and interpreted laws and customs as he saw fit. Whether for lack of interest or lack of free time during the hectic fishing season, Holdsworth held no known courts or meetings during his tenure as admiral. The only extant evidence of his involvement in local government occurred in 1701, when he attested to a list of 'planter's rooms' compiled on the orders of the commodore of the Newfoundland squadron.60 After 1711 Holdsworth stopped sailing to Newfoundland regularly and managed his firm from Dartmouth, where he built a large manor house. In short, he pursued his mercantile interests to the fullest: the legal responsibilities of his office appear to have been of little consequence.61 Though Holdsworth was likely an atypical admiral in many respects, his career reflected a broader pattern. Most fishing admirals lived in Newfoundland only during the summer months, when they were fixated on ensuring that their fishing operations succeeded. They were particularly pressed for time during the late summer and early autumn - from August to October they had to make all the necessary arrangements for settling contracts and prices, and for shipping the codfish to market - but this was precisely when their legal services were needed the most. Even when they had the opportunity, admirals were required, in essence, to police their competitors, a situation fraught with potential problems. Perhaps most importantly, there was no superintending authority other than the commodore, whose power extended only to acting as an appellate judge; in theory complainants had to approach the admirals before bringing petitions before a naval officer. Preoccupied by their own affairs, the admirals had neither the time nor inclination to fulfil the duties prescribed by King William's Act. It is not surprising, therefore, that they conducted little judicial business.62 As we shall see, by the mid-eighteenth century, they were no longer an independent force in the island's politics and, with few exceptions, they obeyed the naval government which dominated Newfoundland from the 1750s to the 1820s. T H E L I M I T S T O NAVAL J U S T I C E

At the heart of complaints about the island's legal system were two basic constraints on the naval system. First, the judicial arm of the

40 The Rule of the Admirals Figure 2.1 The administration of law, 1699-1728 The Crown (Board of Trade)

King William's Act

Fishing admirals

Naval officers (as appeal judges) Local customs

General Court (Convened by Commodore)

1711-

St John's Court (Convened by merchants)

1723-

Royal Navy in Newfoundland did not reach much further than St John's harbour. Communities in the more remote bays received few calls from the squadron's busy frigates which, in any case, were unsuited for navigating narrow coves and shallow harbours. In the early eighteenth century, the squadron sent to Newfoundland usually consisted of one or two ships-of-the-line and an armed sloop. The flagship was typically a fourth- or fifth-rated warship of forty to sixty guns, with two decks, a complement of 220-400 men, and a displacement of 650-1,000 tons. Commodores on the Newfoundland station usually commanded a fifty-gun flagship (such as the Litchfield, Sutherland, Romney, Guernsey, Antelope, and Salisbury), though forty-, forty-four-, and sixty-gun warships were also used on occasion. The flagship of Commodore Rodney, for example, was HMS Rainbow, a forty-gun, fifth-rate ship, with 240 men. Sloops were unrated warships, with 8-18 guns, 80130 men, and 140-380 tons. By contrast, the schooners and brigs used in the Newfoundland fishery were commonly two-masted vessels of thirty to eighty tons.63 Not until the second half of the eighteenth century did commodores arrange for their junior officers to command schooners, to cruise specific districts along the coast, and to convene surrogate courts.

The Fishing Admirals System 41

Second, regardless of the commodores' efforts, the squadron rarely stayed in Newfoundland for more than ten weeks each year. The length of the commission depended on a range of factors - from Admiralty politics to the ships' state of repair - but the warships usually arrived off Newfoundland in July or August and returned to England, often via Lisbon, by the end of November. Two factors fixed the time of departure: the duty to escort the British fishing fleet and the need to avoid the onset of weather conditions that made the Atlantic crossing excessively hazardous. From the viewpoint of judicial administration, this meant that the island relied upon the fishing admirals for the remainder of the spring and summer. Fishing ships typically began to arrive in early May, after which the fishing admirals were appointed. No competent legal authority therefore existed from November to April. The first problem was brought to the government's attention in 1714. Archibald Cummings, a resident trader and prize-agent in St John's (i.e., an agent hired to sell prizes taken in maritime war and condemned by a Court of Admiralty), submitted a report on the state of English settlements in Newfoundland. Cummings recommended the appointment of a person to call at all of the outports where the naval commanders had not visited and to hold courts similar to quarter sessions.64 He proposed that the British government draft legislation to establish a new legal system. Over the next year Cummings repeated this scheme in letters and a printed essay.65 Such individual efforts were soon joined by appeals from English propertied interests: a public meeting of Bristol merchants in January 1715 heard the report of a committee struck to deal with the British trade to Newfoundland, a copy of which was sent to the Board of Trade. The committee had concluded that in order to end the disorders and commercial abuses which were damaging their fishing operations and trading networks, some type of civil jurisdiction in Newfoundland was absolutely necessary. The merchants warned that the fishery would never flourish under military government.66 Ironically, a separate petition sent the same month blamed those very merchants for blocking legal reforms. Written by James Smith - a local resident hoping to secure a government appointment - it repeated many of the lurid claims casually made about Newfoundland. Smith characterized the island as a miserable place, where 'Justice is neither practiced nor known.'67 The petition marked an early instalment in a long line of official and semi-official reports that must be treated with caution. Designed primarily to serve

42 The Rule of the Admirals

the authors' personal interests, they offered neither comprehensive nor accurate statements on the state of law and authority on the island. With regard to the need for winter magistrates, the commodores themselves outlined the situation to the British government. In 1715 Commodore Kempthorn sent a detailed report to the Admiralty which contradicted Smith's view. Kempthorn saw the navy as the sole guarantor of justice in the outports: the problem was not the navy's administration but the absence of authority after the squadron had left. Aside from the failings of the fishing admirals, Kempthorn argued, the real issue was the need to appoint someone to maintain order over the winter. From the naval officers' perspective, the lack of winter justice meant there was always a large backlog of cases waiting to be settled each summer. Equally serious, many crimes allegedly went unpunished during the winter months. Like the Bristol merchants, Kempthorn affirmed that some type of permanent civil magistracy had to be installed on the island.68 Faced with a veritable deluge of petitions and suggestions, the Board of Trade cautiously sought another legal opinion before taking action. In 1718 it asked the attorney general to rule on whether a new statute was needed to appoint magistrates and constitute courts, or whether another royal proclamation would be sufficient. The board's secretary was told emphatically that simply reiterating King William's Act would have no effect on the administration of justice.69 No bill was ever introduced in Parliament, but the British government directed the commodore to inquire whether any of the settlers were fit to act as magistrates entrusted with commissions of the peace. Commodore Scott recommended two St John's residents: William Keen, a merchant who had arrived from New England in 1704, and the former governor, John Collins. Of the two, Keen had a far more zealous temperament, Scott attested, and this proved to be an insightful judgment, for Keen later became the most prominent civil magistrate in early Newfoundland.70 The Board of Trade decided not to make any appointments but instead reviewed its entire policy with respect to Newfoundland. It commissioned a report calling for a return to the original system of the migratory fishery, whereby the island was treated exclusively as a summer fishing station. The report recommended deporting the planters and traders who had settled in Newfoundland to Nova Scotia or some other British colony. By relocating the entire resident population, the need for civil government would be extinguished and the fishery could return to its proper function as an operation based solely in England.71 Such impractical proposals circulated in government circles as late as

The Fishing Admirals System 43

the 1720s, but the mass deportation of English and Irish settlers was never a feasible option. Moreover, the notion that settlement remained inimical to West Country interests was out of step with economic reality, since the migratory fishing now depended in large measure upon the resident population. Never strictly forbidden, English settlement in Newfoundland, which reached 3,000 by 1730, had become an irrevocable fact. 72 AN ANARCHIC SOCIETY?

In many ways the experience of Newfoundland was not unlike that of other colonial settlements stretched along the Atlantic seaboard in the early eighteenth century. In the 1710s piracy still threatened maritime communities where the Royal Navy could not maintain a significant presence.73 For pirates, the island's fishery represented both a productive recruiting ground and a ready source of provisions. It had been in response to pirate raiding that the British government had first begun to send regular naval squadrons to Newfoundland in the seventeenth century.74 One of the repercussions of the reorganization of the imperial state after the Glorious Revolution and the wars conducted by William III had been the massive expansion of the Royal Navy.75 But the increased military presence in North America was tied more to wartime policy than to local needs. The number of warships kept in commission dropped significantly after the Treaty of Utrecht, from over 200 in 1710 to less than 175 ten years later.76 The relative decline in naval forces did not go unnoticed by pirate crews cruising off the Newfoundland coast. Few incidents of marauding were reported in official correspondence, but in June 1720 a large raid on the Southern Shore could not escape the government's attention. At the height of the fishing season, a crew led by Bartholomew Roberts plundered Trepassey and its adjacent villages.77 Such an attack was not an aberration but rather a symptom of the island's position as a breeding ground for piracy. For example, after failing to find work in Placentia Bay in 1723, John Phillips promptly joined a pirate crew, most of whom were tried the following year before an admiralty court at Boston. According to one authority, Newfoundland attracted pirates because it was officially neglected and held by the English merely 'for the conveniency of the cod fishery.'78 As Olaf Janzen has argued, for a brief period in the early 1720s, Newfoundland acted as a type of 'service centre' for the pirates who fed off shipping in the North Atlantic.79 The difference between Newfoundland and other maritime settle-

44 The Rule of the Admirals

ments lay in the ability of the local population to respond effectively to concerns over security. Authorities in Boston could convene a special court to deal with piracy, but planters and traders living in Newfoundland relied entirely on the summer visits of the Royal Navy. Though it may be tempting to see the island as existing in a state of anarchy, the salient fact is that local propertied interests refused to allow this perceived legal vacuum to persist. In 1719 the departing commodore asked William Keen to compile an account of any disorders that took place over the winter. Keen duly related that the day after the navy had left, several fishing masters had publicly insulted a court held by the fishing admirals. He affirmed that during the absence of the warships, the settlers had neither justice nor religion, for 'every man does what he lists without control.'80 Such dramatic language reflected a new activism prevalent among the growing ranks of permanent, year-round settlers. Keen did much more than pass on complaints. Like other planters and merchants, he took steps to respond to serious criminal offences. In 1720 he informed the British government of the murder of Thomas Ford, a prominent merchant in Petty Harbour. Keen had apprehended a suspect and kept him confined; he arranged for the suspect, along with two witnesses, to be sent to England in his own sloop, the Sea Flour, and he paid for all of this out of his own pocket. Pointing out that he had no legal authority to support his actions, Keen appealed to the British government to 'procure for us such power and instructions as may keep us from being destroyed.'81 A petition from the inhabitants of Petty Harbour echoed Keen's report. Citing the absence of winter justice, it called for a court to be established at St John's to punish offenders during the commodore's absence.82 The government's reaction reinforced the fact that the settlers' needs for justice would have to be met locally, without support from London. The Board of Trade concluded that such complaints merely provided further grounds to justify deporting the island's settlers and rid the government of the problem once and for all.83 British officials were determined not to invest the island with formal colonial institutions. As a seasonal fishing station designed to supply sailors for the Royal Navy, Newfoundland was not to be allowed the type of legal system needed to support permanent settlement. Mercantile policy held that establishing an administrative infrastructure would necessarily encourage planters and merchants to invest their capital locally, thereby spawning a resident fishery, which would in turn compete against the West Country merchants and produce a smaller pool of new recruits for the Royal Navy.84

The Fishing Admirals System 45 MAKING COLONIAL AUTHORITY

In response to the inertia in imperial policy, merchants and planters in St John's created their own court. While this was not the only extralegal proceeding held in early Newfoundland - in 1703 a group of settlers in Trinity Bay had established a communal legal code - it marked the first formally established court.85 In November 1723 fifty-one men signed a resolution to 'embody ourselves into a Community for the mutual Preservation of His Majesty's peace and the PROTECTION OF us AND OURS during the winter, that is until the arrival of the British Fishing Ship in this harbour.' To justify their actions, the assembly cited John Locke's Essay Concerning the True, Original Extent, and End of Civil Government.86 The meeting nominated three men to serve as justices John Jago, a chaplain, and Samuel Rooke and Allen Southmayd, both merchants - and during the winter of 1723-4 a weekly court was held at Southmayd's house. Of the fifteen recorded cases decided by the court, three were brought for theft and two for assault.87 Like the proceedings overseen by Captain Crowe in 1711, the sessions held in 1724 took steps to discipline unruly servants. In February the court heard an information from William Bully against his servant, Thomas Slaughter: 'William Bully deposed upon the holy Evangelists that on Sunday the 16th of February, he ordered his servant Thos. Slaughter (then being disordered in drink) to eat his supper and go to bed, and that the said Slaughter refused it, and called him a rascal, scoundrel, and other base names, and struck him and defied any justice - The same day Mrs. Sarah Bully deposed that the said Slaughter called his master scoundrel, dog and toLd him that he kept company with none but scoundrels, and that he spit in her face.'88 The court ordered Slaughter to be tied to a post and whipped eleven lashes on the bare back. The justices who sentenced Slaughter explained their decision by stressing that such insolent behaviour threatened the entire social order. Their statement reflected the systemic fear of unrest that coloured the administration of law: 'He [Slaughter] was all that winter mutinous in the highest degree, threatening to burn houses, to cut people down with his hatchet, bringing other man servants into frequent Caballs and admonishing them to abuse their Masters and to withdraw even common decensey and respect, he was so very dangerous and incendiary that in all probability many tumults and disorders would have happened if he had not been brought to publick punishment.'89

46 The Rule of the Admirals

The court also heard two disputes over property ownership, which it settled according to the common law principle of possession vaut litre (in English law, the fact of possession raises a prima facie title or a presumption of the right of property in the thing possessed).90 As we shall see, despite statutory restrictions on the ownership of real property in Newfoundland, English common law guided the adjudication of most cases throughout the eighteenth century. When the naval commodore returned to England in the fall of 1724, he informed the British government about the courts held the previous winter. In response the Board of Trade merely amended its heads of inquiry to direct the commodore to 'make diligent enquiry into the proceedings of this voluntary new association/ and to prevent any ill consequences.91 The St John's court appears to have died out by 1725, but it had clearly established the legitimacy of such ad hoc juridical arrangements. Captain Bouler of HMS Argyle, moored in St John's harbour in the summer of 1725, found that no courts had been held during the previous winter.92 His counterpart in Placentia, Captain John St Lo of HMS Ludlow Castle, conducted the usual business of working with the fishing admirals to ensure the smooth operation of the fishery. Yet St Lo took his instructions a step further: he independently appointed a magistrate to maintain order after the Royal Navy had left.93 In the meantime, William Keen continued to petition the British government to appoint winter magistrates. In 1728 Keen reported that he had apprehended another murder suspect, whom he sent, along with witnesses, to England in a brig chartered at his own expense.94 The government might have been content to let this informal system operate indefinitely: it cost nothing and required no political capital. If naval officers wanted to appoint informal justices, and if residents were willing themselves to apprehend suspected felons, the Board of Trade had no difficulty with the status quo. In the process, however, the notion of appointing magistrates had become an accepted fact. The question was no longer whether any winter justices would be appointed but, rather, how they were to be authorized and who was to pay for local legal expenses. When the problem of governing Placentia (under the nominal jurisdiction of Nova Scotia) worsened, the issue of establishing a magistracy resolved itself. To strengthen Britain's territorial claim over Newfoundland, the Board of Trade recommended in 1728 that the commodore serve as governor during his residence at St John's and be empowered to appoint justices of the peace to hold quarter sessions. In May 1729 this proposal was approved by the Privy

The Fishing Admirals System 47

Council and the island entered a new administrative era.95 Yet the history of the fishing admirals did not end in 1729, for King William's Act remained in force until 1824. Before we turn to the development of the governorship and magistracy, we must first explore what the admirals did during their long tenure under statute law. A S N A P S H O T OF THE A D M I R A L S ! A N D R E W S V. S T O N E , 1787

One of the rare accounts of how the fishing admirals system functioned in practice appears in the court records for the district of Trinity in 1787. The minutes of Andrews v. Stone, which was heard on petition by a naval surrogate visiting Trinity harbour, offer a remarkably detailed description of how the admirals conducted themselves in the outports under their jurisdiction.96 The case originated in a petition from Jonathan Andrews, an agent for the merchant house Kimber and Company, who claimed the rank of fishing admiral when the firm's brig flora arrived in Perlican in May 1787. Andrews's petition contained three allegations against Thomas Stone, a prominent merchant in Trinity: Stone had illegally seized a boat that Andrews had purchased from William Young, a planter in Perlican; Stone had prevented Andrews from taking possession of a vacant fishing room on the public beach in Perlican, thereby contravening King William's Act; and Stone had used armed force in his efforts to keep Andrews from landing on the fishing room. The first complaint was dismissed, as Young testified under oath that he had previously entered into a binding agreement to build the boat for Stone, to whom he was heavily indebted. The court ruled that Stone had lawfully secured an attachment of the boat, which was then seized and publicly valued against the outstanding debt. The inquiry into the other two allegations provides a fascinating glimpse of how the fishing admiral system operated in the eighteenth century. When the court examined William Matthews, the master of the Flora, his testimony upheld Andrews's contention that he had taken possession of the ship's room in conformity with the provisions of King William's Act: Q: On what day did you arrive at Perlican from Bristol? A: On the 18th of May. Q: Did you understand that any vessel, or person in behalf of any vessel, had been in that part before you?

48 The Rule of the Admirals A: No. Q: Did you fix your claim to any part of the beach on the ships room when you arrived? A: Yes. Q: Was the part so claimed in the possession of any person at that time? A: Not to my knowledge. Q: Was there not a bow set up as a signal, or token of the room you claimed being already possessed? A: There was a bow set up.

The court then examined Thomas Beckett, the agent for Stone in Perilcan: Q: What time did Mr. Stone, or any persons for him, take possession of the room in dispute? A: I don't exactly know the day - It was between the 23rd and 26th of April. Q: Was it for the purpose of carrying on the fishery? A: Yes. Q: Did Mr. Jno. Andrews attempt to possess himself of the said room? A: One of his people took down the bow that had been set up by the master and a youngster of the Joseph and Frances Brigantine, who had come round from Trinity for that purpose, where she had arrived from Poole, and set up his own mark, which I thought myself justified in taking down.

The court ruled that the Joseph and Frances had acted properly by 'observing the usual ceremony upon such occasions' and setting up a bow when they arrived in Perlican. Pakenham rejected Andrews's claim to be the senior fishing admiral on the grounds that his brig was not the first English fishing ship to anchor in the harbour that year. On the question of whether force had been used to prevent Andrews from taking possession of the ship's room, the court heard testimony that further bolstered the respondent's case. It examined Jonathan Norris, one of Stone's servants working under the direction of Thomas Beckett at Perlican: Q: What directions had you from Mr. Beckett relative to the room? A: I was ordered, with others, to cut loose any vessel that Mr. Andrews should bring there with intent to land goods or impede my master's business. Q: Do you know of any number of armed men that were kept on the room for the purpose of opposing Mr. Andrews?

The Fishing Admirals System 49 A: There were no armed men whatever for that, or any other purpose. Q: Were any threats made use of to intimidate or awe the said Mr. Andrews? A: Not to my knowledge.

After examining another of Stone's servants, Captain Pakenham ruled that the charges contained in the petition were 'groundless, vexatious, and ill-founded - tending to subvert that order and destroy that unanimity, so essential to the well-being of the fishery, and to introduce practices injurious to the property of the merchants.' In delivering this judgment, Pakenham made explicit reference to statutory law, pointing out that Stone had taken possession of the disputed room in accordance with 'the full meaning of the Act of Parliament the 10th and 11th of King William the Third.' In addition to affording the only known reference to the practice of using bows as markers for ship's rooms, the case of Andrews v. Stone indicates that the fishing admiral system was functioning in at least one harbour according to King William's Act. Not only did the court recognize and enforce the statute, but local planters and merchants appear to have accepted it as well. The impression from the court minutes is that the fishing admirals were not the all-powerful lords of the harbour, as envisaged by Douglass and other writers, nor were they the wild gangsters of traditional historiography; rather, they worked within a known framework of custom and statutory law, confining their activities largely to the regulation of ship's rooms. Equally important, Andrews v. Stone followed section 15 of King William's Act, which authorized commanders of visiting warships to hear appeals against any decision made by the fishing admirals.97 There is no evidence that a justice of the peace was involved in any way, nor is there any indication that Captain Pakenham's authority was disputed or ignored. Yet, although this case study provides an interesting snapshot of the fishing admirals, we are left with the question of whether it represents a larger trend or an isolated incident. To assess the degree to which the events in 1787 were typical or unusual, we need to examine the broader patterns in the data from the archival records. ANALYSING THE ARCHIVAL

EVIDENCE

The archival data reveal a number of salient patterns. The repeated complaints about the admirals' poor record-keeping are reflected in the archival evidence: no series of records of the fishing admirals' court has

50 The Rule of the Admirals

survived for study and it is unlikely that any separate minute book or journal was ever compiled. A survey of all of the relevant primary sources has turned up the records of only seven sittings of a formal fishing admirals' court (see Notes on Primary Sources). The admirals sat alongside justices of the peace in the district court of sessions in four known instances, and there are two examples of admirals acting as assistants to a surrogate court; yet this type of judicial activity was confined to Trinity during the 1750s and appears to have been an isolated practice. Evidence indicates that by the second half of the eighteenth century the admirals no longer seriously contested the legitimacy of the island's naval government. The sole extant example of an admiral challenging the civil magistracy occurred in 1758 in Trinity harbour, where a fishing admiral refused to assist a constable in serving an arrest warrant, and this was a relatively minor incident.98 The admirals' level of participation in judicial administration appears to have been a fraction of the workload of the local magistracy. While the justices of the peace and the naval surrogates in each district heard dozens of criminal and civil cases every year, the admirals' total involvement in the legal system from the time local court records began to be kept in 1749 to the passage of the Judicature Act in 1792 averaged only about once a year for the entire island. The picture that emerges from the archival data is of the fishing admiral as an acquiescent and minor part of the island's legal system. Almost half of all the references to the admirals are orders sent to them by a governor, naval officer, or justice of the peace; they themselves did not send any extant orders to any magistrate. In two instances during the 1750s, admirals' courts appear to have acted independently, but in every other case their proceedings were sanctioned by either a visiting naval surrogate or a justice of the peace. They brought no recorded cases to trial in the civil or criminal courts, nor did they order or carry out any corporal punishments. The traditional stereotype of despotic admirals ruling with the cat-o'-nine-tails is simply not supported by the archival record: all of the known public whippings in Newfoundland were meted out on the orders of the naval governor, one of his junior officers, or a justice of the peace." The admirals' involvement in the criminal justice system was limited to three misdemeannor breaches of the peace. In the first case, the admiral of Trinity harbour sat alongside two justices of the peace in a court of session held in 1755 which ordered the house owned by a man convicted by a jury of being a public nuisance to be hauled down and destroyed. This is the only known instance of a fishing admi-

Table 2.1 The fishing admirals' jurisdiction, 1749-92 Law of real property (King William's Act) Admirals' proceedings District proceedings Surrogate's proceedings Orders Decrees Appeals Testimony Report Total

Fishery regulations (King William's Act)

7 1 7

6

Law of master and servant 3 1 4

Criminal law

Civil law

Total

1

7 4 2 20

1 2

8

8

3 1 27

Source: See Notes on Primary Sources

1

2 1

7

11

3 3 2 3

1

52 The Rule of the Admirals

ral participating in the sentencing of an offender.100 In the other two cases, the governor ordered a fishing admiral to admonish a man and a woman accused of being disorderly persons.101 The data indicate that the admirals' jurisdiction was generally confined to the authority conveyed by King William's Act. All of the extant sessions of the admirals' court dealt exclusively with the law of real property as it related to the regulation of waterfront premises (usually referred to as ships' rooms or fishing rooms), and the adjacent houses, stores, stages, flakes, wharves, and other buildings used in the cod fishery. King William's Act clearly gave the admirals legal cognizance in such cases - Governor Milbanke viewed this as the only effective power actually conferred by the Act - and this statutory authority seems to have been respected in both St John's and the outports.102 The admirals' other two areas of activity concerned the conduct of the fishery (e.g., ensuring the proper use of bait and nets, as well as the methods for drying and curing codfish), and disputes between masters and fishing servants (e.g., cases of breach of contract and petitions for outstanding wages). Under King William's Act, the admirals were required, 'in order to preserve peace and good government amongst the seamen and fishermen,' to enforce the rules and orders contained in the Act.103 These rules and orders cited a range of specific issues the use of seines, cutting of firewood, theft of fishing gear, observance of the Sabbath, etc. - and the admirals had a well-established role in helping the naval government regulate the fishery. As late as 1792 Governor Richard King issued a proclamation that required the fishing admirals, 'strictly to enjoin the masters of the fishing ships, the byeboat keepers, and inhabitants, to take the greatest care in curing their fish with good salt, and with a proper and sufficient quantity, and in preparing, husbanding, and ordering the same.'104 Reflecting their status as servants of the Crown, the admirals were obliged to report to Governor King the names of those who failed to comply with the proclamation. In one known instance the admirals heard a civil case beyond their statutory authority - in 1770 the admiral of Burin was ordered to settle a dispute over a bill of exchange payable to a Boston merchant and this exceptional order was probably issued because there was no resident magistrate in Burin.105 The admirals had limited involvement with the law of master and servant. There is only one extant case of an admiral ever becoming involved in the administration of the range of penal sanctions - i.e.,

The Fishing Admirals System 53

fines, whippings, and banishment - used to enforce the local law of master and servant. In 1755 William Whitwood, the admiral of Trinity harbour, sat alongside the two justices of the peace in a court which authorized Benjamin Lester, a prominent merchant, to withhold fifty shillings from the wages due to Henry Smith, one of his servants, on the grounds that Smith had failed to perform the work for which he had been contracted.106 The admirals acted as judges in three other master-servant cases, all of which were wage disputes. In 1749 Governor Rodney ordered the admirals to hear a complaint that a servant had assaulted his master, but this seems to have been an isolated incident: the other orders relating to master-servant cases all dealt with wage disputes.107 When the local law of master and servant was codified in Palliser's Act of 1775, jurisdiction over master-servant cases was given to the justices of the peace and the vice-admiralty court; no mention was made of the admirals.108 Fishing admirals testified in the trials of two servants - in 1784 about the cost of a servant's passage from Ireland and about a servants' unruly conduct the following year - and in 1788 they submitted to the Ferryland surrogate court a report on a servant's qualifications as a fisherman.109 Like the island's fish merchants, who were often reluctant to attend a court session unless they had a case pending, the admirals appear to have been very rarely involved in the many master-servant cases which local courts faced every autumn. THE F I S H I N G A D M I R A L S ' COURT

The seven surviving sessions of the fishing admirals' court break down into two distinct periods: three during the early 1750s, and four during the mid-1780s. The proceedings of the 1750s all involved property disputes in outports along the Southern Shore. The admirals appear to have acted independently, most likely after being petitioned viva voce by one of the parties, and did not proceed via judicial writ. None of the court actions were initiated by a governor, justice of the peace, or naval officer. The first case, heard in 1752, concerned a plantation in Fermeuse leased to a tenant by the attorney for a landlord who had recently died. The property passed to the landlord's daughters, who refused to honour the lease, despite the fact that the tenant had fulfilled the conditions of the covenant and improved the property considerably. Following the standard rules of equity, the bench of three local fishing admirals upheld the covenant, ordering that the tenant

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continue to hold and enjoy the property in conformity with the terms of the lease.110 The second case, heard in Ferryland in 1752, also involved a dispute over the property of a deceased planter. The property was claimed by the deceased's sister and another man who asserted that it had been willed to him; since the plantation had been leased, the court had to decide who should receive the rent. Acting as a probate court, a bench of three fishing admirals heard the testimony of fourteen men who seem to have served as a type of jury. Upon making a 'strict inquiry of the inhabitants and principal persons/ the court determined that because the landlord had left neither a will nor any outstanding debts or obligations, his sister should inherit the property and collect the annual rent.111 The final case was a straightforward ruling on the boundaries and ownership of a piece of waterfront property in Fermeuse. In 1754 two fishing admirals issued a certificate (countersigned by two witnesses), which stated the dimensions of the property and affirmed that the land had not been previously occupied. Though this decree was later confirmed by a visiting naval surrogate and entered into the St John's records, it was similar to the previous proceedings in that the fishing admirals clearly exercised the primary jurisdiction.112 By contrast, two of the admirals' courts held in the 1780s acted on the orders of the naval governor at St John's. The first case began in 1784, when the commander of the sloop-of-war Echo directed the fishing admirals to convene a court to look into possible encroachments on ships' rooms in St John's harbour. They were asked to investigate two properties - a storehouse and wharf erected for the use of the garrison and a house built by Alexander McClure - and determine whether they were built on tracts of the waterfront which had been used as ships' rooms reserved for the public use of fishing ships.113 A bench of two fishing admirals held a court which questioned five witnesses about the circumstances of the property and the history of its use in the fishery. Following standard English jurisprudence, the court examined the local inhabitants with the longest memories of how the property had been used.114 After considering this testimony, the admirals ruled that two buildings had indeed been erected on ships' rooms, which were supposed to be common property. This judgment implicitly charged the two proprietors with violating King William's Act, but the admirals restricted their judgment to the basic facts, offering no comment on the attendant questions of law.115 It was the naval governor and his officers who undertook the difficult task of interpreting the law

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and issuing the necessary orders. Later in the year, the governor instructed the fishing admirals to hold a second court to investigate whether a building obstructed another tract of public property.116 This time the admirals ruled that the building in question was a public nuisance and should be removed, but they issued no orders and merely passed on their report to the governor.117 Part of a larger struggle to reopen access to a local waterway, this case involved a number of different complainants and petitioners, none of whom solicited the legal services of the fishing admirals. The admirals had become involved simply because the governor had required them to do so. The third fishing admirals' court convened in the 1780s seems to have been the closest the admirals came to fulfilling their duties as prescribed by King William's Act. In 1786 the admirals of St John's harbour assembled a court in response to a petition from the firm of Thomas & Stokes against John Noble, a competing merchant who had built a fishing stage and storehouses adjacent to the company's waterfront premises. The petition claimed that the new structure encroached on the land between the two properties, which had been used as a public ships' room: this was not only detrimental to the public in general, but also forced Thomas & Stokes to build a new wharf to maintain access to the harbour. Upon receiving the petition, William Orchard, the senior admiral in St John's harbour, decided to consult with the 'gentlemen merchants, boatkeepers and others, resident in this place.' Orchard put to them two questions: was the waterfront property in question actually a public ships' room and, if so, what portion of it was Noble required to leave vacant for common use?118 The testimony of thirteen men was entered into the court minutes. While one witness reported that he had no knowledge relative to the two questions of fact, the twelve others all testified that, for as long as they could recollect, the cove lying between the property of the petitioner and the respondent had been used as a common area for landing, washing, and drying codfish; but no one knew the exact boundaries of this common area. After hearing this testimony, the court was read an affidavit given by Thomas Buffett, whose statement had been taken by a magistrate two days earlier. Buffett stated that over thirty years ago a stage and flakes had been erected on the property now occupied by Noble, thereby casting doubt on what portion of the property, if any, actually encroached on common land. The court's decision reflected both the witnesses' testimony and Buffett's affidavit. Finding that the exact boundaries of the public ships' room could not be determined, the

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admirals ruled against the petition and ordered that no alterations be made to Noble's property. However, in recognition of the need to preserve common access to the waterfront, they also ordered that the cove to the east of Noble's premises be kept open at least twenty-four feet wide to serve as a public ships' room. This balanced judgment was accepted by both parties - no appeals were filed - and the fishing admirals sent Governor Elliot a final report on the case.119 The last known sitting of a fishing admirals' court, held in Ferryland in 1787, was a throwback to the earlier proceedings of the 1750s. Like the admirals' court in Fermeuse in 1754, this case involved a straightforward ruling on the boundaries and occupancy of a fishing room. As the entry in the district minute book makes clear, the admirals were careful to limit their purview to the facts: These certify whom it may concern that we the Fishing Admirals of the harbour of Ferryland have made strict enquiry of the antient [ancient] inhabitants of Ferryland concerning a vacant an[d] unoccupied spot of ground which Francis Free jun. have built a fish flake, house and stage and sunk a wharf and continues to build such as flakes and other conveniences as is needful for the use of the fishery in the said harbour of Ferryland - situate on the NW part of the said Harbour at the foot of the lookout hill known by the name of Gays Hill - its length along shore N E b N - S W b S - four hundred thirty five feet bounded by the common foot path on the NW which the said antient inhabitants have made known to us that the said vacant and unoccupied spot until this year have not been occupied these thirty years or more the last occupier we were informed was James Murphy boatkeeper deceased grandfather of the said Francis Free jun. the said Francis Free jun have kept a shallop this fishing season and cured fish on the said premises and intend to carry on the fishery for the full extent next year.120

This ruling was signed by the admiral, Gregory Hawson, vice-admiral, Thomas Anquetil, and rear admiral, Richard Teede; it was also countersigned by the local justice of the peace, Robert Carter. As in the earlier courts held by other admirals, Hawson did not make a summary judgment and took pains to consult the eldest townspeople about the boundaries and use of the property. His court, like the others we have examined, bore no resemblance to the drunken travesty of justice described by Judge Prowse.121

The Fishing Admirals System 57 CONCLUSION The appointment of a governor and civil magistracy in 1729 signalled the end of the only period in which the island's settlers endured anything close to anarchy. After thirty years of ad hoc measures Newfoundland gained magistrates and the trappings of colonial government, but it did not suddenly acquire law. Unlike an empty vessel ready to be filled with English justice, the island already had common law and local customs which, although inchoate, affected the reception of statute law. The authority of the new regime was not automatically accepted; rather, it had to be demonstrated and enforced at the local level. Prior to 1775, King William's Act remained the only statute specifically designed to regulate the Newfoundland fishery. Naval officers did not have the statutory authority enjoyed by the fishing admirals, and the appointment of a governor and justices of the peace by royal prerogative in 1729 did not alter this fact. Written law was less a direct obstacle than a fog that obfuscated local developments - it could not prevent naval officers, merchants, and settlers from creating alternative means of dispute resolution - but it did suppress the process of legitimizing locally constituted authority. With their position enshrined in statute, the fishing admirals had been circumvented but not extinguished as a legal force. Under the protective awning of parliamentary law, they reasserted their powers after 1729, precipitating a struggle for political and juridical supremacy. Ironically, the admirals used King William's Act to reclaim their full authority only after the death of the regime on which it was based. The legacy of the fishing admirals raises a number of important questions. The reason they left so few records may have been rooted in laziness or incompetence, but there is remarkably little hard evidence that the admirals were the corrupt despots described by Judge Prowse. What we do know about the admirals suggests that they were generally serious and diligent when they became involved in local cases. The fact that most of the admirals signed their own names to the documents which have survived for study also undermines the presumption that they were overwhelmingly illiterate. In the court minutes at Fermeuse in 1752, for example, the admirals noted that they had conducted their deliberations while 'having the Act of Parliament now before us.'122 To be sure, the admirals were likely too busy during most of the summer fishery to hold regular courts, but the bulk of outstand-

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ing cases settled by magistrates throughout this period were heard in the early autumn, after merchant accounts were settled and cod shipments were made. A more plausible explanation for the admirals' relative inactivity is that their restricted statutory authority meant that they were unable to hear the vast majority of cases that arose each year. As we have seen, King William's Act empowered the admirals only to regulate the conduct of the cod fishery and the allocation of ships' rooms. It did not authorize them to hear other civil or criminal cases, nor could the admirals legally convene courts to settle most disputes between masters and servants, which comprised almost half of the entire caseload in the outport districts.123 In short, because the admirals generally adhered to King William's Act, their judicial scope was heavily circumscribed. The role of the naval governor and his junior officers was also limited in statutory law; they won the struggle for power because of their superior material resources, political force, and willingness to take local initiatives. While the Royal Navy eventually became entrenched as the dominant source of customary authority, the admirals saw their power steadily eroded after 1729. The admirals' fortunes reflected the changing place of King William's Act in the island's legal regime. Parliament had designed the Act as a means to meet the needs of the English migratory fishery and to enforce the imperial policy that Newfoundland should be a seasonal fishing station. As settlement expanded and the fishery grew in complexity, the demand for local justice extended well beyond what Parliament had envisaged in 1699. This is not to suggest that King William's Act was never enforced. As Patrick O'Flaherty asserts, it was repeatedly invoked throughout the eighteenth century.124 But the existence of the Act did not prevent other sources of law from emerging to meet the growing needs of the local population. From the perspective of statutory law and official imperial policy, Newfoundland appears to have been legally static: no new legislation was passed until Palliser's Act of 1775. From the viewpoint of customary law and local authority, however, the picture is quite different. As we shall see, by 1750 the island had an effective legal system which included a naval governor, who held a court in St John's; civil magistrates, who held regular courts of session; a court of oyer and terminer, which heard felonies every autumn; and a network of surrogate judges, who convened courts in the outport districts each year. As the island's naval government filled the vacuum left by King William's Act, the fishing admirals became increasingly irrelevant. They had neither the

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legal authority nor the material power to impose their will on local communities. Like King William's Act itself, until 1824 the admirals' jurisdiction remained continually in force but was never consistently enforced.125 King William's Act influenced but did not determine the island's legal development. The decline of the fishing admirals was due in large measure to the strength of local custom and common law, and the concomitant weakness of King William's Act. With the limited powers accorded to the fishing admirals, the Act did not provide meaningful guidance for the resolution of the wide array of local disputes that lay beyond its purview. While attempts to comply with it were never fully successful, this does not mean that settlers and merchants were denied law. Statute law was never the dominant means through which state power was organized in eighteenth-century Newfoundland. As we shall see, the Judicature Act of 1792 tailored law to the available legal resources and codified local customs which had prevailed for generations. Given the fishing admirals' minor role in the actual administration of justice prior to 1792, it is hardly surprising that they were left out of the new legislation. Finally, the fate of the fishing admirals bears on the larger problem of historical certainty. How can we be sure that the admirals did not take bribes or order summary whippings? The answer, of course, is that we cannot say with absolute certainty that they never acted like the admirals described by Judge Prowse.126 But historians labour under the burden of positive proof: we cannot claim that the admirals sold justice from an inverted butter firkin unless we actually have evidence that they did so.127 Some of them may well have worn blue flushing jackets and trousers, besmeared with pitch, tar, and fish slime - one of them might even have fallen over drunk during a court session - but we cannot simply take Prowse's word for it. We are left to build our arguments as best we can, using the extant archival sources, and this means that our conclusions must be limited to what most likely happened in the majority of cases. In other words, my account of the admirals is based on probability, not certainty. Certainty is the domain of myth and legend, which will no doubt continue to depict the admirals as the villains in the saga of early Newfoundland.128 Yet, judging from the historical evidence, the admirals were not so much the villains as the losers. As we shall see in the next chapter, in the struggle for power in the eighteenth century they lost out to the naval officers, upon whose reports John Reeves and his successors relied.

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APPENDIX 2.1 K I N G W I L L I A M ' S ACT The following sections from the 'Act to Encourage the Trade to Newfoundland/ (10 & 11 Wm. Ill, c. 25, ss. 4 & 12-16), outline the judicial system as it existed in statute law from 1699 to 1775. IV And be it further enacted by the authority aforesaid, that (according to the ancient custom there used) every such fishing ship from England, Wales, or Berwick, or such fishermen as shall, from and after the said twenty-fifth day of March, first enter any harbour or creek in Newfoundland, in behalf of his ship, shall be Admiral of the said harbour or creek during that fishing season, and for that time shall reserve to himself only so much beach or flakes, or both, as are needful for the number of such boats as he shall there use, with an overplus only for the use of one boat more than he needs, as a privilege for his first coming thither; and that the Master of every such second fishing ship, as shall enter any such harbour or creek, shall be Vice-Admiral of such harbour or creek during that fishing season; and that the Master of every such fishing ship next coming, as shall enter any such harbour or creek shall be rear admiral of such harbour or creek during that fishing season; and that the Master of every fishing ship there shall content himself with such beach or flakes, as he shall have necessary use for, without keeping or detaining any more beach or flakes, to the prejudice of any other such ship or vessel as shall arrive there; and that such person or persons, as are possessed of several places in several harbours or creeks there, shall make his or their election of such place as he or they shall choose to abide in; and shall also, within eight and forty hours after any aftercomers into such place or places shall demand such his or their resolution touching such his or their election (if the weather will so soon permit, or so soon after as the weather will permit) give or send his or their resolution to such aftercomer or aftercomers, touching such his or their election of such place as he or they shall so choose to abide in for the fishing season, to the end that each aftercomer or aftercomers may likewise choose his or their place or places of his or their abode there; and in case any difference shall arise touching the said matters, the Admirals of the respective harbours where such differences shall arise, or any two of them, shall proportion the place to the several ships in the several har-

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hours they fish in, according to the number of boats which each of the said ships shall keep. XII And be it enacted by the Authority aforesaid, that no person or persons whatsoever shall, at any time after the said twenty fifth day of March, rind any of the trees there standing or growing upon any occasion whatsoever, nor shall by any ways or means whatsoever set on fire any of the woods of the said Country or do or cause to be done, any damage, detriment or destruction to the same, for the use or uses whatsoever, except only for necessary fuel for the ships and inhabitants, and for the building and necessary repairs of houses, ships, boats, and train-vats, and of the stages, cook-rooms, beaches and other places for taking bait and fishing, and for drying, curing and husbanding fish there; and also that no person or persons whatsoever shall, at any time after the said twenty fifth day of march, cast anchor, or do any other matter or thing, to the annoyance or hindering of the hauling of the sayns in the customary baiting places, or shoot his or their sayn or sayns within or upon the sayn or sayns of any other person or persons whatsoever; and also that no person or persons whatsoever shall, at any time after the said twenty fifth day of March, steal, purloin or take out of the net or nets of any other person or persons whatsoever, lying adrift, or drover for bait by night, nor steal, purloin or take away any bait out of any fishing boat or boats, or any net or nets belonging to any other person or persons. XIII And whereas several persons that have been guilty of thefts, robberies, murders, and other felonies upon the land in Newfoundland, and the Islands thereunto adjacent, have many times escaped unpunished, because the trial of such offenders hath heretofore been ordered and adjudged in no other Court of Justice, but before the Lord High Constable, and Earl Marshal of England; for reformation thereof, and for the more speedy and effectual punishment of such offences for the time to come, Be it enacted by the authority aforesaid, that all robberies, murders and felonies and all other capital crimes whatsoever, which, at any time or times after the said twenty fifth day of March shall be done and committed in or upon the land in Newfoundland, or in any of the Islands thereunto belonging, shall and may be enquired of, tried, heard, determined and adjudged in any Shire or County of this Kingdom of England, by virtue of the King's Commission or Com-

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missions or Oyer and Terminer, and Gaol Delivery, or any of them, according to the Laws of this land under for the punishment of such robberies, murders, felonies, and other capital crimes done and committed within this Realm. XIV And be it further enacted by the authority aforesaid, that the Admirals of and in every port and harbour in Newfoundland for the time being, be and are hereby authorized and required (in order to preserve Peace and good Government amongst the seamen and fishermen, as well in their respective harbours, as on the shore) to see the rules and orders in this present Act contained, concerning the regulation of the fishery there duly put in execution; and that each of the said Admirals do yearly keep a journal of the number of all ships, boats, stages, and train-vats, and of all the seamen belonging to and employed in each of their respective harbours, and shall also (at their return to England) deliver a true copy thereof, under their hands, to his Majesty's most Honourable Privy Council. XV And be it further enacted by the authority aforesaid, that in case any difference or controversy shall arise in Newfoundland, or the Islands thereunto adjoining, between the masters of fishing ships and the inhabitants there, or any by-boat keepers, for or concerning the right and property of fishing rooms, stages, flakes, or any other building or conveniency for fishing or curing of fish, in the several harbours or coves, the said differences, disputes and controversies, shall be judged and determined by the fishing Admirals, in the several harbours and coves; and in case any of the said masters of fishing ships, by-boat keepers or inhabitants, shall think themselves aggrieved by such judgment or determination, and shall appeal to the Commanders of any of his Majesty's Ships of War, appointed as Convoys for Newfoundland, the said Commander is hereby authorized and empowered to determine the same, pursuant to the regulation in this Act. XVI And to the end that the inhabitants, fishermen, seamen, and all and every other person or persons residing or being at Newfoundland, or any of the said Islands, or other places, may with all devotion join in their solemn prayers and addresses to Almighty God, for obtaining of his Blessing upon their persons and endeavors; Be it hereby enacted, that all and every the inhabitants of Newfoundland, or the said Islands

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or places adjacent near thereto shall strictly and decently observe every Lord's Day, commonly called Sunday; and that none of the said inhabitants (who keep any tavern, alehouse, or other publick house for entertainment) shall entertain or sell, vend, utter or dispose of to any fisherman, seamen, or other person whatsoever upon any Lord's Day or Sunday, any wine, beer, ale, cyder, strong waters or tobacco, or any other liquor or liquors whatsoever. Source: John Reeves, History of the Government of the Island of Newfoundland (1793; reprinted, New York: Johnson Reprints, 1967), appendix A, i-xv. Cited by Reeves in the old style as Stat. 10 & 11 Gul. III. Cap. 25. Spelling and punctuation have been modified.

3

An Unruly Set of People: The Struggle for Judicial Authority

In their study of the scientific revolution, Steven Shapin and Simon Schaffer employ a metaphor that is useful in analysing developments within colonial law. They assert that instances of contestation offer invaluable entry points through which to examine the formation of institutionalized systems of ideas. Using the analogy of the ship in the bottle, they suggest that an episode of controversy offers an opportunity to see that a ship was once a pile of sticks and string and that it was once outside the bottle.1 In a similar vein, the legal disputes that marked Newfoundland during the 1730s provide rare insights into the process of law-making. These cycles of conflict are as important to the study of governance as periods of apparent consensus, for they shed light on the lines of antagonism and alliance that typically remain hidden from official correspondence. Like any social system, legal institutions were constructs of politics and power. To understand how naval government eventually became entrenched, it is necessary first to explore its fractious origins. The period following the establishment of a naval governor and civil magistracy in 1729 is crucial to tracing the development of Newfoundland. In the 1730s two opposing groups with claims to legal authority the justices of the peace (via commissions granted from the governor) and the fishing admirals (via King William's Act) - competed for control over the means to administer law. This was not a case of obstruction by corrupt fishing admirals of enlightened reforms. Equally

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important, this conflict does not fit the conventional model of statesanctioned formal law versus popularly oriented customary law. In Newfoundland the former was far from uniform, and what law the labouring people might resist was itself contested by opposing factions within the ranks of the propertied classes. The struggle for legal supremacy entailed a crisis within the law; the question to be decided after 1729 was what type of institutions would govern Newfoundland. This process of law-making produced a hybrid regime derived from common law, statute law, prerogative writ, and local customs, but we are looking at more than a case study of legal pluralism.2 I argue that the competition between two sources of authority - both within the boundaries of English legal culture - produced a third type of jurisdiction: an incipient customary regime that became entrenched over the course of a generation. The naval government which emerged in the 1750s and persisted until the 1820s was in large measure a product of compromises made after 1729 to suit the island's politico-economic conditions. To those living in Newfoundland in the late eighteenth century, its judicial system seemed to have operated from time immemorial, but the creation of a local law and legal ideology constituted a recent invention dependant upon contingent events and contested decisions. This chapter identifies and pursues three themes. First, the construction of the island's legal regime involved a trans-Atlantic process, whereby the government in London (primarily the Board of Trade) and English mercantile interests (principally the merchants of Poole, Dartmouth, and Bristol) played an active role. Through regular reports from the governor and personal meetings after the squadron's return, the Board of Trade was kept well informed of the situation on the ground, amending the annual heads of inquiry to reflect concerns over the administration of law. A parallel private system also influenced the course of state policy: through members of Parliament and municipal officials, a bloc of West Country merchants registered their opposition to legal reforms. Second, the extent of locally available resources and the nature of the island's social environment fundamentally shaped the development of law. From the outset, governors and magistrates had to adjust local law to reflect conditions that inhibited the simple importation of English institutions. The absence of a gentry or any semblance of an established middle class left governors with few options when appointing justices of the peace. As the dominant military force and political authority in Newfoundland, the Royal Navy

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continued to fill the need for basic administrative infrastructure. Third, local customs significantly affected the reception of English law. While many practices were ancient, in the sense of originating before written records were kept, others, such as the use of fishing admirals' warrants, were recent measures. Within a generation the Royal Navy itself, through the governor's de facto position as chief justice, occupied the centre of an entrenched customary system. The disputes during the 1730s illustrate how long-standing prerogatives could be reasserted in different forms when threatened by administrative activism. For thirty years the fishing admirals had done relatively little to fulfil their duties as laid down in King William's Act, but they swiftly reclaimed their powers when forced to share authority with civil magistrates. I N S T A L L I N G A G O V E R N O R AND M A G I S T R A T E S

The British government did not consider the reforms instituted in 1729 to signify a major shift in its policy on Newfoundland. The initial recommendation to appoint a governor and civil magistrates - made in December 1728 by the Board of Trade to the Duke of Newcastle, secretary of state for the Southern Department - echoed a report issued a decade earlier.3 It claimed that the general contempt for the authority vested by law in the fishing admirals had damaged trade and diminished the reserve of potential sailors for the Royal Navy.4 Additionally, the intransigence of the garrison commander at Placentia needed to be eliminated by establishing the naval commodore as the island's undisputed political and military authority. To justify this move the board claimed that several commodores on the Newfoundland station had already served informally as governors. The report raised the issue of magistrates as an administrative afterthought. It recommended that if the commodore were empowered to appoint justices of the peace to settle disputes between the inhabitants during the winter season, the miseries of the planters and servants would be somewhat abated.5 The Board of Trade had yet to formulate a clear strategy on the question of local government. While suggesting that a trained lawyer be sent to assist the regulation of property disputes, it repeated the impractical proposal, originally advanced in 1718, to deport the island's settlers to Nova Scotia.6 In April 1729 a committee of the Privy Council approved the plan to appoint a governor and justices of the peace. The committee stressed the need to bolster the commodore's power to settle property disputes and to establish a magistracy so that those who remained on

An Unruly Set of People 67

the island would not live in a state of anarchy. To check the perceived social decay of the fishing communities, the Society for the Propagation of the Gospel was asked to send missionaries to Newfoundland.7 The Board of Trade ordered the usual heads of inquiry to be prepared and met with Lord Vere Beauclerk, who was to command the squadron.8 Lord Vere had served as commodore the previous year and had already argued the case for legal reform. His 1728 report had reiterated the essential points of his earlier dispatches to the Admiralty: the fishing admirals were largely corrupt, habitually incompetent, and held courts only when the naval commanders were present; yet the practice of periodically appointing winter magistrates had no basis in law and their authority was not recognized in the outports. He then summarized the crux of the problem: unless the naval commanders were present to assist the fishing admirals in executing their legal duties, 'their meetings would be nothing but confusion, and their orders of no use, which is the reason we are obliged to usurp a power, which I apprehend does not properly belong to us, of publishing orders in our own names to prevent as much as we can the threats of rioting and disorders, which, to the great detriment of the fishery, are generally practiced in our absence.'9 The British government was unwilling to appoint Lord Vere governor of Newfoundland because it would then lose his parliamentary support. The Board of Trade drafted a commission for Captain Henry Osborne to act as governor, with Lord Vere to serve as commodore of the naval squadron.10 Government ministers expressed serious reservations over the new administrative system. Officials at the Board of Trade warned that efforts to enforce the fishery's regulations would be ineffective until the British government established a court in Newfoundland with a clear jurisdiction in civil law. The proposed changes also did not affect felonies committed in Newfoundland, which still could be tried only in England, a system that already had proven unworkable. The Board of Trade suggested that a lawyer be sent to the island as soon as possible, along with a commission of oyer and terminer, in order to establish some type of local assize jurisdiction.11 Instead, the naval governor's commission set clear limits on his legal powers. It was normally issued only once, at the beginning of the governor's concurrent appointment as commodore, and any amendment required a new commission to be issued under the great seal. It empowered the governor to constitute and appoint justices of the peace, who were to hold quarter sessions according to English law. But the governor and his magistrates were

68 The Rule of the Admirals

forbidden to contravene King William's Act in any way and were ordered not to interfere with the fishing admirals' jurisdiction.12 The commission placed Placentia under the jurisdiction of the Newfoundland governor and authorized him to build gaols and courthouses throughout the island. Yet this mattered little when balanced against the fact that the governor was legally obliged to defer to the fishing admirals' powers to settle disputes relating to the fishery, as defined in King William's Act. Since nearly every case involved the fishery one way or another, the governor could not necessarily claim to have the superior legal authority. Despite London's hesitancy, the appointment of Governor Osborne marked a break with Newfoundland's legal past. For the first time, the island's governor was a servant of the Crown appointed by writ of the Privy Council. Whereas the early governors had been leaders of commercial ventures, the naval governors were professionals, paid a set salary, and given an official mandate to enforce the authority of the Crown. It is important to note that the governorship was first and foremost a post in the Royal Navy. From 1729 to 1825 every governor was simultaneously the commander-in-chief of the Newfoundland station. Prior to the appointment of Admiral John Montagu in 1776, the naval governors held the rank of commodore.13 This was a temporary rank given to an experienced post-captain when he assumed command of a naval squadron or station. Valued by aspiring officers as a means of securing future promotion, it brought the coveted honour of hoisting a broad pendant and with it a wide range of responsibilities. Commodores of the Newfoundland station followed orders from both the British Admiralty and the Board of Trade; in addition to their own flagship, they had to manage a squadron which typically consisted of several warships. Their authority was based on the commission given to each governor at the beginning of his term. It empowered the appointee to act as governor and commander-in-chief over all of the civil and military personnel within his jurisdiction, authorized him to appoint local magistrates, and gave him the honorific title of Excellency.14 THE TASK OF B U I L D I N G A J U D I C I A R Y

From the outset the British government tried to address the apparent dearth of formal legal training and institutions in Newfoundland. Raised initially in the Privy Council, a proposal to send guidebooks to accompany the new commissions of the peace was eagerly adopted by

An Unruly Set of People 69

the Board of Trade. Before sailing from Spithead, Lord Vere took aboard thirteen copies of King William's Act, one bundle of the Acts relating to Trade and Navigation, and eleven sets of Shaw's Practical Justice of the Peace.}5 Each copy of the manual had the name of one of the island's principal towns embossed in gold letters on the cover.16 This is the only extant reference to the use of justice's guidebooks in the eighteenth century: it is entirely unknown whether Shaw's manual was ever used by any of the island's magistrates, but my sense is that magistrates never relied on it to any significant extent. Justices who did exhibit legal training, such as Samuel Harris in Trinity harbour during the 1750s, appear to have acquired their knowledge in England. A weakness in Christopher Tomlins's masterful survey of American law is that Tomlins tends to assume that magistrates carefully followed the instructions and guidelines in the various editions of manuals printed in England and colonial America.17 The case of early Newfoundland suggests that a wide gap could exist between what justices were supposed to be doing and what they did in practice. When Governor Osborne arrived in HMS Squirrel in the summer of 1729, he summoned the principal inhabitants to St John's harbour and publicly read his commission. In the weeks before the squadron returned to England, Osborne had to institute the basic elements of the new legal system, most notably the justices of the peace. The Newfoundland commission of the peace, he later confessed, had been quickly drawn up as best he could manage before receiving orders from the Admiralty to set sail.18 It combined the form of the English commission of the peace with additional directions for observing the laws and customs of Newfoundland. On the one hand, it included the standard directives given to English justices of the peace: magistrates were to ensure that those who broke the peace either found sufficient security or were imprisoned; they were empowered, for example, to convict those who committed fraud through false weights and measures or sold food contrary to English ordinances. They were also required to hold general quarter sessions according to common law. These provisions were essentially the same as those contained in commissions of the peace issued throughout Georgian England.19 On the other hand, the island's commission curbed the magistrate's jurisdiction to conform to King William's Act. It stipulated that the justices could not prosecute or judge robbery, murder, or any other capital crime; in such cases they had to arrange for the suspect and witnesses to be sent to England. Magistrates were never to contravene King Will-

70 The Rule of the Admirals

iam's Act in the course of their duty, nor to do anything repugnant to its provisions, and were prohibited from obstructing the fishing admirals in the execution of their office. On top of these restrictions, justices of the peace were required to assist both the naval commanders and the fishing admirals (see Appendix 3.1). The commission assigned the island's civil magistracy both the wide-ranging responsibilities accorded English justices and the limited authority concomitant with King William's Act. This arrangement engendered a tripartite judiciary - Royal Navy, fishing admirals, and justices of the peace - without any clear delineation of legal powers. While the fishing admirals enjoyed a statutory prerogative, they were not empowered to issue judicial writs, a right granted only to justices of the peace. Before the new system could function effectively, its distribution of powers and responsibilities would have to be clarified. More immediate, however, was the problem of appointing a sufficient number of civil magistrates. Governor Osborne had no trouble finding suitable men in St John's: two of the justices - William Keen and Allen Southmayd - had already served as local magistrates.20 But the lack of acceptable candidates in the smaller outports forced Osborne to create a system of judicial districts encompassing a series of settlements along a specified stretch of the coastline. Osborne divided the island into six basic jurisdictions that prevailed to the end of the eighteenth century, each with at least three justices and constables (with the exception of Conception Bay).22 Although Lord Vere expressed hopes that the new magistracy would prove popular and effective, Osborne was far less optimistic. In his first report as governor, Osborne cautioned that the best of the magistrates were but inferior men unfamiliar with any form of government. He repeated the opinion - commonly heard in official circles and repeated uncritically by some modern observers that the island's people were as primitive as its institutions.23 Settlers may have acquired the first layer of English law, but they had yet to prove to London that they could sustain civil government. Governor Osborne also worked to establish prisons and stocks for the new penal regime. Upon his arrival in St John's he found no functional gaol, nor any house that could serve as one, and he sent a warrant to the justices of the peace, directing them to organize the building of a prison and the means to pay for it. In August 1729 the magistrates proposed a scheme to raise £150 by taxing the season's fish catch. Osborne approved the plan and authorized the justices to raise a levy: one half a quintal (the standard hundredweight measure) of merchant-

An Unruly Set of People 71 Map 3.1 Judicial districts in Newfoundland, 1732

No. Districts Bonavista

Boundaries

From Cape Bonavista to the Northward Trinity From Cape Bonavista, all of Trinity Bay, to Bay de Verde Harbour Grace From Bay de Verde, all of Conception Bay, to Cape St Francis From Cape St Francis St John's southward as far as Bay Bulls From Bay Bulls, Ferryland south to Cape Race, west to Cape Pine From Cape Pine to Placentia Placentia and the west side of the bay

Principal towns

Justices

No. Constables

Bonavista, Baylys Cove

3

3

English Harbour, New Perlican, Trinity, Old Perlican, Bay de Verde Bristol's Hope, Carbonear, Harbour Grace, Bay Roberts Torbay, Quidi Vidi, St John's, Petty Harbour Bay Bulls Tors Cove, Ferryland, Fermeuse, Renews, Trepassey St Mary's, Placentia, Little Placentia

3

5

2

7

4

4

5

9

3

3

Source: PRO, CO 194/9, 225; Prowse, History of 'Newfoundland, 301.

72 The Rule of the Admirals

able (i.e., sellable quality) codfish per fishing vessel; another half a quintal per ships' room (i.e., waterfront premises); and an undetermined, proportionable rate for those not involved in the fishery.24 This tax applied only in St John's and Ferryland districts, where prisons were to be built, and for only one year. The other districts would rely on stocks for petty offences; serious offenders would be sent to one of the two regional prisons. Osborne confirmed the prison tax through a public proclamation, sending additional warrants to the justices to ensure its collection.25 By imposing taxation in a jurisdiction without any form of representative government, Osborne knew he was on uncertain ground.26 As he was no doubt aware, King William's Act clearly designated the Newfoundland fishery to be a free trade.27 DEFINING THE BOUNDARIES

OF ENGLISH LAW

With the convoy of fishing ships and naval escorts ready to weigh anchor in early November 1729, Governor Osborne could do no more until the following year. Not surprisingly, after his departure the nascent magistracy ran into problems. Two justices of the peace in Bonavista - who described themselves as 'newly appointed justices, not learned in the Law' - sent Osborne a request to clarify their civil jurisdiction: the commissions and instructions had contained no references to causes involving property rights or the recovery of debts.28 In April 1730 Lord Vere Beauclerk and Governor Osborne met twice with a committee at the Board of Trade to discuss the problems which had arisen the previous year. The secretary of the Board of Trade asked Francis Fane, the solicitor general, and Philip Yorke, the attorney general, to provide opinions on several points of law.29 Lord Vere and Osborne presented four quaeres: if the island's inhabitants disobeyed the order to raise the prison tax, in what manner could they be punished; if they ill-treated magistrates or destroyed the stocks, could they be forced to pay for repairs and be corporally punished; could the justices, in the absence of the fishing admirals, decide disputes relating to property; and, finally, could Governor Osborne authorize additional taxes to fund public works?30 The reports took different approaches but both criticized the initiative to impose taxation. While Fane expressed doubts over the validity of the magistrates' actions, Yorke ruled emphatically that they did not have sufficient authority to raise funds for building a prison.31 The attorney general's opinion clearly limited the scope of Osborne's legal

An Unruly Set of People 73

regime. Yorke argued that the levy on fishing boats directly contravened not only King William's Act, which exempted the fishery from taxation, but also the English statute regulating gaols, by which such rates could be set only after a grand jury presentment.32 He pointed out that the island's commissions of the peace required the magistrates to act according to the laws of England. 'So far as the people have submitted to this tax/ he conceded, 'there may be no occasion to call it into question, but I cannot advise the taking of rigorous methods to compel compliance with it.'33 With regard to the second quaere, the attorney general stated that actual assaults or resistance to authority were indictable offences punishable by a fine or imprisonment. For contemptuous words spoken to the justices or to their authority, offenders were not liable to be punished corporally but were to be bound in recognizance for their good behaviour.34 To the third question Yorke gave an unequivocal answer: the justices of the peace could not decide differences relating to property; their powers were restricted to the criminal matters specified in their commission. On the broader issue of the power to raise taxes, he pointed out that no such authority existed in Osborne's instructions for imposing general taxation without the consent of some assembly of the people.35 Though relatively straightforward in theory, the division between criminal and civil jurisdictions was largely ignored in practice. Yet the provision for allowing the use of informal meetings to approve local levies was later exploited as a justification for establishing regular taxation throughout the island's districts. The Board of Trade decided not to alter its Newfoundland policy. It tried to wring some legal justification for the prison tax from the solicitor general and, obligingly, Fane reassured the government that Osborne had acted with caution and prudence. Having taken no arbitrary steps in the execution of his commission, he concluded, the Newfoundland governor would not be liable to a prosecution in England. Although Fane still held that the tax was not entirely reconcilable with King William's Act, he believed that Osborne was justified in raising the levy because it represented the only means through which the governor could meet the design and intent of his commission.36 Assuaged by this, the British government made no changes to its instructions to the Newfoundland governor. The secretary of the Board of Trade reassured Osborne: 'you stand perfectly justified according to his [the solicitor general's] opinion, as so you do in ours, in all the steps you have taken there for preserving the peace and tranquility of the inhabitants, during your absence, more particularly with respect to the building of a gaol.'37

7

4 ls

To avoid any appearances of violating the free trade in the fishery, he suggested that the tax be levied in money exchangeable for fish. If Osborne encountered resistance to the prison rates, a grand jury was to be impanelled to make a presentment at quarter sessions. In June 1730, with the naval squadron already put to sea, the Board of Trade finally responded to a government query - made the previous year by the Duke of Newcastle - into reputed difficulties in administering law in Newfoundland. Stonewalling for another year, the board asserted that Osborne had faithfully discharged the trust reposed in him and no further information would be available until he returned the following autumn. 00

LOCAL POWER STRUGGLES

When Governor Osborne returned to Newfoundland in 1730, he soon discovered the extent of resistance encountered by magistrates trying to establish their jurisdictions in the outports. Waiting for him was a dispatch from the Placentia magistrates, recounting how the fishing admirals had successfully challenged their authority. The justices of the peace - Peter Signac, Thomas Salmon, and Thomas Buchanan reported that the three admirals of the harbour had convened a court in May 1730 to hear two complaints brought by a fish merchant. According to the justices, the admirals had ordered one of the defendants to be imprisoned overnight in the garrison merely because of a trading disagreement.39 The next day the magistrates met Captain William Brooks, the senior fishing admiral, at Salmon's house and told him that the proceedings of the admirals' court constituted an infringement on their authority. Brooks then purportedly claimed that, 'the administration of all justice did belong to them, and that we was only winter justices, and that his thought was that our power was only about the affairs of the church and in such small business.'40 The justices offered to hold a meeting to produce their commissions of the peace, but Brooks retorted that he had 'no business with our commissions, that he had the Act of Parliament for his.'41 One of the men allegedly went so far as to pronounce that the admirals had greater legal powers than Governor Osborne. This altercation provides a rare insight into the highly personalized process through which authority at the local level was negotiated and contested. As tensions rose in the room, Thomas Salmon laid the key to the stocks on the table and declared: 'he that had the most right to it

An Unruly Set of People 75 may take it.' Without hesitating, William Brooks snatched it up, affirming that the admirals had the power 'to whip and to put in the stocks when they thought fit and to imprison and detain at their pleasure.'42 It is not surprising that the key to the stocks figured so prominently in this confrontation: whoever possessed (both figuratively and literally) the means to punish controlled the symbolic and material centre of judicial power.43 According to the magistrates, the admirals not only claimed the right to appoint constables; they also disparaged Governor Osborne's authority as based merely on a commission issued by the Privy Council. Forced onto the defensive, the justices decided to wait until Governor Osborne arrived in Placentia to confirm their powers and - equally important, though they did not admit to it - to bolster their damaged social standing.44 When Osborne visited Placentia, he attempted to expand the justices' authority by empowering them to act in any of the island's districts. He hoped this would enlarge the pool of available magistrates and thereby augment their position in outport communities.45 The incident in Placentia illustrates how various sources of law became intertwined in the contested imposition of civil authority. The fishing admirals displayed a basic legal knowledge and were well aware of the difference between statutory law and royal prerogative. They used this to argue that their authority (by King William's Act) was inherently superior to that of the governor and the justices (by order-incouncil). The admirals cited recent practices and popularly held beliefs, in particular the idea that the magistrates were merely winter justices confined to hearing breaches of the peace after the naval squadron had returned to England. The mistaken notion that justices were restricted to sitting during the winter months has been widely treated as an accepted fact, but it had no legal foundation whatsoever.46 Neither the governor's commission nor the commissions of the peace circumscribed the justices' summer jurisdiction beyond the provisos to obey King William's Act and to assist the fishing admirals. The conflict between the admirals and magistrates demonstrated the consequences of the relative ability of competing legal authorities to enforce their judgments. Without the means to chasten the fishing admirals, the justices backed down, effectively conceding the government of Placentia until Governor Osborne arrived. This crisis was not restricted to outports like Placentia, nor did it dissipate with Osborne's arrival. He received further complaints that the fishing admirals had licensed public houses and had repeated the claim that their authority was superior to that of the justices.47 The St John's

76 The Rule of the Admirals

magistrates reported that the admirals had expanded their jurisdiction beyond disputes concerning the fishery: they now determined criminal cases, sent warrants to constables, and ordered magistrates to assist in carrying out sentences. Governor Osborne responded by sending a pessimistic dispatch to London. He had hoped to be able to inform the British government of the progress brought by legal reforms, 'but instead thereof, the Fishing Admirals and some of the rest of the masters of the ships and traders in this Island, has ridiculed the Justices of Peaces authority very much in my absence, and have used their utmost endeavours to lessen them in the eye of the lower sort of people, and in some parts have in a manner wrested their power from them. The admirals have brought the power given them by the Fishing Act in competition with the justices, and have not scrupled even to touch upon mine.'48 Osborne pointed out that before the appointment of civil magistrates, the admirals had rarely exercised their statutory authority. Since 1729, however, they had used 'all the little spiteful things they can against these men because they bear this commission.'49 Some justices of the peace had become completely intimidated, refusing to judge certain cases for fear of retaliation from fish merchants. To counteract this trend, Osborne issued a proclamation confirming the justices' powers.50 THE RECEPTION OF LAW IN PRACTICE

The governor did report progress in the efforts to construct prisons and to establish a penal system. Osborne affirmed that the local tax had been successfully raised and the new gaol was practically completed.51 In August 1730 he ordered the local legal fees to be publicly decreed. To spur the construction of the other regional gaol, Osborne travelled to Ferryland to convene a public meeting. Attended by twenty of the principal planters and merchants, the assembly approved plans to raise a levy of one shilling and six pence per servant, payable by the fishing masters, to cover the building costs.52 Osborne tried to portray this as a type of presentment, but no grand jury sat to consider the proposal at the Ferryland quarter sessions; moreover, no evidence survives of any grand jury presentments throughout this period. Magistrates tried as best they could to perform their duties according to their commissions. For example, William Keen, the senior justice in St John's, launched a coroner's inquest into a homicide at Quidi Vidi in 1730. He directed three surgeons to perform a post-mortem and arranged for the suspect and two witnesses to be sent to England.53 Keen complained to the

An Unruly Set of People

77

Table 3.1 Legal fees in St John's, 1730 Official

Cost of legal service

Prison keeper Parish constable Beadle Clerk

12 pence per prisoner and 12 upon discharging; 3 shillings per week 12 pence for serving a warrant in town; 4 pence per extra mile 1 2 pence per whipping 12 pence for issuing a warrant

Source: PRO, CO 194/9,41,

Board of Trade that he had to pay the entire cost of transporting the suspect and witnesses. He also warned that the order to collect taxes for building a prison was not being complied with, while some local traders adamantly opposed all forms of civil government.54 In his official dispatch to London in September 1730, Lord Vere Beauclerk personally apologized for the failures in establishing the new legal regime. Writing from HMS Oxford, moored in St John's harbour, he admitted that he had originally intended the justices' powers to be limited to the winter months, but he could not lawfully limit their authority once they had been given commissions of the peace. 'I have only endeavoured/ he conceded, 'to keep them and the admirals quiet, without absolutely determining their several jurisdictions/55 What was now needed were clear instructions from the British government on the respective responsibilities and powers of the justices of the peace and the fishing admirals. The Duke of Newcastle pressed the Board of Trade to devise a plan to rectify the island's administrative problems.56 Newcastle asked for another opinion on whether the commissions of the peace contravened the powers given to the fishing admirals by King William's Act. In December 1730 the attorney general submitted a report which concluded that the justices' powers in no way impinged upon the fishing admirals' authority. He ruled that the admirals' powers extended only to regulating disputes within the fishery. Whereas this constituted a type of civil jurisdiction in particular property cases, the justices' authority extended only to breaches of the peace and other criminal matters.57 It appeared, therefore, that a feasible division of legal powers could be made on the basis of criminal versus civil administration, with the former allocated to the justices of the peace and the latter to the fishing admirals. Numerous points of law remained unsettled, however, and Governor Osborne again sought legal opinions when he returned

78 The Rule of the Admirals

to England. In the winter of 1731 Osborne brought three new quaeres: did the fishing admirals have the power to issue warrants to constables, or were they subordinate to the justices of the peace; were the justices entitled to act according to the statute laws of England; and was the governor himself empowered to act as a magistrate and to sit at quarter sessions?58 Francis Fane, the solicitor general, was asked to deal with the questions in the spring of 1731. In an important ruling, Fane replied that the admirals had no power to send warrants to constables, nor to commit persons to prison or the stocks: they were subordinate to the justices in everything but what related directly to their authority to settle disputes in the fishery. This was due to the fact that King William's Act did not assign the fishing admirals any specific powers to levy penalties or to inflict punishments (see Appendix 3.2). In response to the second question, Fane gave a clear statement on the reception of English law. First, he set down the parameters for reception: 'I apprehend that all the statute laws made here previous to his Majesty's subjects settling in Newfoundland are in force there: it being a settlement in an infidel country.' 'But as to the laws passed here subsequent to the settlement,' he continued, 'I take it they will not extend to this country unless it is particularly mentioned.'59 In theory, the date of settlement appears to have been the watershed in the reception of statutory law. In practice, however, magistrates continued to draw on whatever statutes and writs they deemed necessary to execute their commissions. The extant evidence supports Christopher English's argument that the grant of representative government in 1832 marked the point at which imperial statutes ceased to be ex proprio vigore [by their own force] the laws of Newfoundland.60 The island may have been strictly a seasonal fishing station in the minds of some officials, but Fane evidently viewed the appointment of a governor to be a tacit acknowledgment that colonization had already occurred. The solicitor general claimed that the governor himself could not act as a justice of the peace because his powers extended only to appointing others to the office. Like the issue of the right to settle permanently on the island, the prerogative of the governor to sit as a judge remained an uncertain point of law, despite Fane's ruling. Prior to 1749 most governors appear to have been wary of establishing any type of formal court - or any jurisdiction comparable to a court of Chancery - and they rarely strayed very far from their appellate jurisdiction granted by King William's Act. Yet, as we will see, the custom of holding a governor's court became established in the second half of the eighteenth century, though this legal innovation had no statutory foundation.

An Unruly Set of People 79 In the spring of 1731 the Board of Trade drafted a revised commission for the next governor, Captain George Clinton, directing him to report anomalies in the judicial system.61 The administration of law clearly diverged from the government's scheme. Apparently oblivious to the opinions of the Crown's law officers, the fishing admirals continued to exercise their newly discovered powers, defying both the governor and the justices. The fishing admirals of Muskitta appointed their own deputies to settle cases during the winter and issued arrest warrants.62 This was not an isolated incident: in June 1731 the St John's justices petitioned against the fishing admirals' repeated incursions into areas of civil government, such as appointing constables, and they asked for yet another explanation of the admirals' exact powers under King William's Act. As for their own authority, they declared: 'we cannot believe His Majesty's commission, which without reserve imposes us to act with the same authority as any justice of the peace in Great Britain, to be contradictory to the said Act/ 63 This assertion was at best an exaggeration and at worst a deliberate fabrication. The justices' commission not only strictly enjoined them to obey King William's Act, it also explicitly forbade them from interfering in any way with the lawful authority of the fishing admirals to settle disputes in the fishery.64 Whether these provisos were compatible with the other powers contained in the commission of the peace remained a moot point, but they placed significant restrictions on the justices' authority, which was ipso facto not the same as magistrates in England. English magistrates dominated local government: they did not have to share the duties of keeping the peace and settling disputes with law officers such as the fishing admirals.65 Captain Osborne, whose warship had arrived before Clinton's, took little time to respond to the magistrates' complaints. He published a proclamation condemning all scandalous and seditious reflections upon His Majesty's authority. Osborne berated the fishing admirals for their arbitrary proceedings and false interpretation of King William's Act. He ordered every person to show the same respect towards the island's justices of the peace as they would to any magistrate in Britain.66 THE E X P A N S I O N OF NAVAL P O W E R

Once Governor Clinton arrived in HMS Salisbury in the summer of 1731, the struggle for authority in Newfoundland became further embittered. Clinton censured the fishing admirals at Muskitta for usurping the justices' powers - a malfeasance he imputed to sheer

80 The Rule of the Admirals

ignorance - and kept the admirals' warrant to show the British government how insolent they had become.67 Captain Osborne also sent a dispatch to the British government repeating the increasingly common invective against the fishing admirals. Osborne argued that as a result of recent disorders, offenders were escaping with impunity.68 He added that Irish convicts were now being shipped to Newfoundland illegally as fishing servants; the convicts were blamed for the recent murder of a woman and four children at Muskitta. By linking the fishing admirals' conduct with fears of serious crime and social disorder, Osborne raised the stakes in the battle for legal supremacy. Throughout his first year as governor, Clinton reproved the fishing admirals and anyone else, including the commander of the army garrison at Placentia, who appeared to resist his authority.69 Out of this conflict emerged three major developments. First, Commodore Clinton augmented and formalized the system of sending naval warships on cruises along the coast to enforce the governor's authority. He sent junior officers to various outports to administer justice on his behalf, a precursor to the surrogate courts which formed the backbone of the judiciary after 1749. In August 1731, for example, Clinton appointed Lieutenant Richard Hughes temporary captain of the fifty-gun Salisbury, ordered him to visit the larger outports, and gave him an extensive list of duties: Hughes was to assist the fishing admirals, determine outstanding disputes, prevent illegal trade and smuggling, collect the prison tax, oversee the punishment of offenders, compile the returns for the heads of inquiry, and prevent foreign vessels from fishing contrary to the Treaty of Utrecht.70 This resurgence in the custom of naval governance was driven by the nature of the island's legal resources: the Royal Navy represented the only institution with sufficient means to enforce British policy and the rule of the civil magistracy. Second, Governor Clinton used the nascent surrogate system to tighten his supervision of the justices of the peace and to respond promptly to problems in the outport districts. He worked vigorously to centralize authority and - arguably for the first time in the island's history - correspondence flowed to and from the outports without delay. This was made possible by the Royal Navy's highly developed administrative apparatus, in which naval clerks and junior officers maintained careful records. Clinton's efficient command structure, which foreshadowed the letterbook system instituted by Governor Rodney, ensured that orders were carried out and recorded in official reports.71

An Unruly Set of People 81 Figure 3.1 The administration of law, 1729-48 The Crown (Secretary of State)

Governor (Commission by royal prerogative)

King William's Act

Fishing admirals

Naval officers (as appeal judges)

Justices of the Peace (Commission of the Peace)

Quarter Sessions

Petty Sessions

Naval officers (as Surrogates) Local customs General Court (Convened by Governor)

Third, and equally significant, Governor Clinton expanded his authority beyond the prerogative of his commission. Exceeding his appellate jurisdiction, Clinton gave summary judgments in cases presented by written petition. In August 1731, for example, he ordered a planter in Placentia to pay ten pounds per annum on a sixty-pound debt and, in reply to a second petition, directed the fishing admirals to force another man to pay the balance of an overdue account. He also issued a series of judicial writs, such as attachment, in areas of law where he had no cognizance. Clinton prohibited a master from selling fish until he had paid his servant's wages (and had him fined for contempt when he did not comply), directed the Fermeuse fishing admirals to settle disputed merchant accounts according to the contracted price, and issued a writ of attachment to a planter for a twenty-five pound debt.72 The governor also resurrected the custom, practised in the 1710s, of convening a general court alongside the St John's fishing admirals. In September 1731, for instance, Clinton and two admirals issued a ruling on the ownership of a fishing premises in Petty Harbour.73 The governor

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was well aware of the questionable legality of such proceedings, for two days later he urged the fishing admirals to hold their own courts: If you remember, upon my arrival here, and publishing my commission; I then declared that I should not sit at any court ashore; but that in compliance with the Act of Parliament, [King William's Act] I should be always ready to hear any appeal that might be made to me on board the Salisbury, from any person that judged himself aggrieved by your sentence. But as I am daily pestered with complaints of masters being ill treated by their servants, and servants wronged by their masters ... it makes me very free to say that I think you have been very negligent in the discharge of that duty incumbent on you; that is, the speedy hearing [of] such complaints, and doing justice to the injured party. It is therefore my opinion that you ought ... hold a Court to hear and decide so many controversies as are ready to come before you.74

Local developments, particularly appeals from the St John's magistrates, had pressured Clinton to assume greater legal powers. The justices had warned him that strong measures were especially needed to combat abuses in the fishery and the wave of crimes committed by transported convicts reputedly landed along the coast.75 Governor Clinton did not feel beholden to the justices of the peace. In response to complaints of disorders in the public houses at Placentia, he ordered recognizances to be taken for troublemakers, but he also admonished the local justices for charging exorbitant fees for liquor licences and for keeping poor records. Upset by this perceived interference, Thomas Salmon and Thomas Buchanan, two of the Placentia magistrates, asked to resign their commissions.76 Clinton dismissed Jacob Taverner, a justice in Trinity, for being a dissenter, replacing him with Richard Waterman, to whom a naval officer was to administer the necessary oaths.77 In his dispatch to the Trinity magistrates Clinton demanded that they cooperate with each other, explaining that it was impossible to maintain an effective government in the face of such public disputes.78 R E S I S T A N C E TO THE M A G I S T R A C Y

Some local interests strenuously fought against the efforts to entrench the civil magistracy. A feud between Nathaniel Brooks, the justice of the peace in Bay Bulls, and George Rowe, a ship master acting as a fishing admiral, undercut the governor's authority along the Southern Shore

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throughout 1731. A prominent English Catholic, Rowe had sent written orders to another master to terminate a servant's contract. The master's wife had then appealed to Brooks, who responded by informing Rowe that, 'a man of your profession hath no authority to grant warrants amongst us Protestants, without a power and authority from King George.'79 The conflict between Rowe and Brooks reveals how religion could form a powerful social cleavage. Brooks's statement reflected more than simple prejudice, for it was based on the Penal Laws cited in his commission of the peace.80 The Test Acts of 1673 and 1714 clearly prohibited Roman Catholics from serving as law officers of the Crown.81 Brooks was also likely drawing upon the widely shared belief, as stated in the Articles of Religion, that the Roman Catholic Church had no jurisdiction in England.82 From Justice Brooks's perspective, that Rowe was neither Irish nor a servant mattered less than the fact he was a Roman Catholic. But while Brooks focused on the question of religion, Rowe turned to legal issues, in particular the lack of statutory authority for appointing justices of the peace. 'I do admire who gave any such fellow as you orders to act or dispute in any manner of justice,' Rowe retorted, 'although you have had the impertinence of doing it, without either act of Parliament or orders to the Government.'83 Episodes of contested authority could flare into serious violence. In addition to having to maintain their authority among the merchants and planters who controlled the capital in the fishery, the justices of the peace used force to discipline servants who did not exhibit sufficient deference. Twice during August 1731 the stocks in Trinity were broken by defiant servants, one of whom had tried to murder the presiding magistrate.84 In response to the attempted murder, the local magistrates sent a detailed report to their counterparts at St John's. This dispatch provides one of the few surviving accounts of the local conflicts that underlaid the broader struggle for authority. According to the justices, [Ljast Sabbath Day the 15th of August Mr. Francis Squib, one of his Majesty's justices for this Bay coming from church finding Thomas Stuard in his house and making a great disturbance with his fellow servants, his master ordered him into the stocks which in a little time after he broke open the stocks and made his escape; the next morning Mr. Squib sent for to take him up for breaking the stock to pieces, this Thomas Stuard got a gun and loaded it with powder & shot, and swore the first man that did offer to take hold of him he would shoot him, there was the constable and

84 The Rule of the Admirals several men more, but none dared venture, Mr. Squib goes down into his own boat to take the gun from him, Thomas Stuard put the gun to Mr. Squib's breast and the gun snapt, or else he had killed him on the spot; one of Mr. Squib's men draw'd the shot out of the gun after, and she went off the first time, so having no prison here as yet, we have sent him, gentlemen, to you, and desire that you will order him to be kept in gaol until he shall be thence discharged by due course of Law.85

Other skirmishes of this sort went unreported or were mentioned only in passing: Stuard's case survives for study only because it directly involved a magistrate and was serious enough to warrant sending the servant to St John's along with a written report. It is impossible to measure the frequency of such conflict with any accuracy until the 1750s, when justices began to keep local minute books. In addition to tensions between masters and servants, the justices had to deal with their ongoing battle with the fishing admirals for control over the administration of law. In September 1731, for example, the admirals at Placentia attempted to co-opt the army garrison. Claiming that the justices of the peace had neglected their duty, they petitioned the local commander to order his soldiers to patrol the community during the winter.86 Angered by such insolence, Governor Clinton submitted a scathing report to the British government. He portrayed Newfoundland as a wild country where only the Royal Navy stood in the way of a troika of venal fishing admirals, rebellious Roman Catholics, and rapacious merchants. 'The ignorant people are possessed therewith/ he claimed, 'their orders are obeyed, and mine tore, and those I send them be very much abused/87 Two fishing admirals had been charged with contempt of court, though the outcome of their trial, if one were ever held, is unknown. The dispatch received serious attention at Whitehall, in particular Clinton's assertion that it was 'almost impossible to govern such a sort of people under the present Establishment.'88 In November 1731 the Duke of Newcastle again requested the attorney general to recommend measures to overcome the difficulties faced in Newfoundland. Newcastle considered the root of the problem to be the ongoing dispute over whether the justices' commission of the peace contravened King William's Act, and he asked for another opinion on how best to clarify the web of overlapping legal jurisdictions.89 Despite the best efforts of the early naval governors, the admirals could not easily be dismissed as ignorant troublemakers because they offered a cogent legal argument. By appealing to the supremacy of statutory law,

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the fishing admirals forced the British government to rethink its support for the island's civil magistracy.90 POLITICAL MACHINATIONS IN ENGLAND

In the winter of 1732 the powerful West Country interests backing the fishing admirals counterattacked. In February the MP for Dartmouth met personally with a committee at the Board of Trade to present a memorial requesting that the justices of the peace be prohibited from hearing disputes in the Newfoundland fishery.91 Signed by twenty prominent merchants and traders, including the fishing admiral of St John's harbour, the petition condemned the civil magistrates as illiterate boors who lived idly on credit during the winter. It argued that because these justices did not return to England each year, they could not be held properly accountable for their actions. The merchants spared little in this political offensive. They complained of Governor Osborne's unfair and illegal taxes, which allegedly damaged trade and reduced servants to beggary. They requested that the justices of the peace be denied any legal powers during the seasonal government of the fishing admirals, that is, from May to October each year.92 Similar petitions were sent by the merchants of Poole and Bristol. While the former characterized the island's justices as 'New England men of little worth and less reputation/ the latter affirmed that they had succeeded in wresting the lawful statutory powers out of the admirals' hands. 43 By portraying the justices as crass and ungentlemanly provincials, the merchants placed a social as well as a political distance between themselves and the magistracy. Merchants and officials in Poole took additional steps to discredit the Newfoundland justices: the mayor, Timothy Spurrier, took two affidavits from fishing masters describing supposed instances of misconduct by local magistrates. In the first, Peter Shank, master of the Nancy - a Poole sloop operating out of Ferryland in the summer of 1730 - stated that when he had moored in St John's harbour to take on passengers bound for Ireland, William Keen came aboard and summarily imprisoned him. Keen then searched every chest on board, arrested four men and, as a result of the fracas, Shank lost more than half of his fares.94 The second affidavit contained two statements from Dorset masters sailing out of Trinity. John Moors, of the brig Agnes and Mary, claimed that in the spring of 1731 the local justices had unlawfully arrested one of his servants. Moors's statement clearly illustrates the sharp personal antago-

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nism that characterized the battles between masters and the magistrates: 'this deponent says, that he went to the said justices and told them, that one of the men was his servant, and that as he was viceadmiral and duly qualified, he would have a hearing and know by which authority they presumed without his licence to put them in the stocks.'95 According to Moors, the magistrates threatened that 'if he did not hold his tongue, they would put him in the stocks likewise, and by force and in opposition to this deponent did put the said men in the stocks/96 Joseph Vallis, master of the brig Friends Adventure, related that when the admirals had posted the price of fish and a list of debt settlements on the church door, the justices tore it down and tied it to the common whipping post.97 As in Placentia, the tools of punishment were at the heart of struggles for authority. This campaign forced the British government to reconsider its support for the Newfoundland magistracy. Although William Keen had sent a strong written answer - Shank's affidavit had formed the basis of another petition filed at Poole - the barrage of criticism prompted the Board of Trade to abandon its efforts to clarify and implement the jurisdictions and relative powers of the justices and fishing admirals.98 What now concerned officials was how to prevent further protests and maintain a basic framework for the de facto administration of justice. In March 1732 the Board of Trade approached Captain Clinton for advice on how to proceed. Clinton reiterated his earlier criticisms of the admirals' conduct and his bigoted comments about the island's society, slandering the Irish as 'the scum of that Kingdom/ but he also called for statutory reform. Only by altering King William's Act and giving the island's governor powers equal to his counterparts in North America would the situation finally be improved.99 Clinton was trying to salvage the idea that Newfoundland should have institutions similar to those established in official British colonies. As had occurred a generation earlier, proposals for reform proved to be politically naive. By the spring of 1732 the British government reverted to its long-standing position that nothing more should be done in Newfoundland than was absolutely necessary. No further legal opinions were requested from the Crown's law officers, nor was any action taken in Parliament. This unwillingness to alter official imperial policy was in part a result of the campaign of the English fish merchants. In an effort to overturn the old myths of West Country tyranny, Newfoundland historians have overstated the case against mercantile influence.100

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To insist that the petitions and appeals against the justices of the peace made no impact in London is to argue against the evidence. West Country interests did not dictate policy with respect to Newfoundland - in fact, the merchants represented only one contributing factor among many - but in this particular case their efforts tipped the scales in the government's decision making. The Board of Trade withdrew its support for the justices of the peace, who could no longer rely on the governor's backing. Belatedly, the Board of Trade replied to the Duke of Newcastle's requests for a response to the West Country petitions. Its April 1732 report insisted that the justices of the peace in Newfoundland had not interfered with the fishing admirals but allowed that they may have been guilty of some irregularities. While still blaming the admirals for failing to hold proper courts, the Board of Trade proposed that the governor be given three additional instructions: to investigate the complaints contained in the affidavits and petitions; to remove any justice who had acted improperly; and to stamp out all infractions of King William's Act.101 A new article was subsequently added to the governor's instructions requiring him to evaluate the magistrates' conduct. This became an entrenched directive and - as the sixty-seventh clause of the heads of inquiry - remained part of the governor's official duties for over half a century. Consequently, the position of the justices of the peace became increasingly untenable. Their legal powers remained ill-defined; governors treated them warily; and they had little local support after the naval squadron had departed each autumn. By the mid-1730s, the question of the reception of English law and the clarification of the justices' powers faded into political oblivion.102 The British government began receiving reports that it had become nearly impossible to find qualified men willing to serve as justices of the peace, and in 1735 Governor Lee informed the Board of Trade that it was extremely difficult to get anyone to accept the commission.103 Lee's dispatches over the next two years stressed the insults to which local magistrates were subjected during the navy's absence.104 It would take another generation before justices of the peace finally and irrevocably replaced the fishing admirals as the dominant civil authority throughout the island's districts. By the outbreak of the War of Jenkins' Ear, the pretense that the Newfoundland magistracy would function entirely according to formal English law seems to have been abandoned, as the British government became preoccupied with other matters.105

88 The Rule of the Admirals THE A S C E N D E N C Y OF THE ROYAL NAVY

Throughout this period, the Royal Navy continued to strengthen its role in the administration of law.106 Captain Edward Falkingham, governor in 1732, informed London that the fishing admirals had lapsed into the practice of leaving disputes to be heard by the naval commanders. Like many of his predecessors, Governor Falkingham convened a public court at St. John's to settle important cases. For example, he exonerated William Keen from the charges laid the previous year in the affidavits registered in Poole. And, like his successors, Falkingham reported that he neither received local complaints against the justices' behaviour nor observed them act outside of their lawful jurisdiction.107 In 1735 Governor Lee claimed that the problem of army officers meddling in civil government had briefly recurred at Placentia; at St John's, he had tried to ease the friction between the magistrates and fishing admirals by explaining their separate jurisdictions.108 Lee and his successors emphasized that the Royal Navy now exercised complete political control and legal authority while on the Newfoundland station. According to Lee, the island had been unfairly maligned as a wild frontier when, in fact, 'Blasphemy, profaneness, adultery, fornication, polygamy and incest are crimes I have never had any complaints of while in this part of the world.'109 Throughout the 1730s the authority of the civil magistrates shrank as they became effectively an appendage of the naval administration. By 1738 Governor Vanbrugh felt compelled to assert that the justices were still valuable because they offered a check on the growing number of Irish Catholics who settled in Newfoundland. This reflected the prevailing view of the civil magistracy as simply a tool to deter disturbances in the winter.110 The emerging naval surrogate system provided the means to meet the basic need for local courts. The judicial capacity of the Royal Navy at once centralized authority in the hands of the governor in St John's and extended the reach of the island's legal system along the coast. The practice of sending officers on seasonal cruises to outports in place of the governor had, of course, no basis in written law other than the governor's own appellate jurisdiction granted by King William's Act.111 But it worked because the Royal Navy was ideally suited to administer law in the outports: it had the resources required to enforce its authority, to present itself as an impartial arbiter of justice, and to bestow the majesty of English law. Even the smallest armed sloops used on the Newfoundland station had more than sufficient military resources to

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impose its authority on any fishing installation: weaponry (cannon and small arms), trained personnel (sailors and marines), and penal facilities (for corporal punishment and brief incarceration). Equally important, every post-captain was well-versed in the task of dispensing justice and meting out punishment. Through both their formidable summary jurisdiction on board individual warships and their service as judges in courts martial, officers gained considerable knowledge of how to maintain law and order. As N.A.M. Rodger demonstrates, officers in the Georgian navy relied far more on the unwritten customs of the sea than on the cumbersome provisions in the Admiralty's Regulations and Instructions or the haphazard legal code in the Articles of War.112 They were expected to act pragmatically, to govern as effectively as possible in adverse maritime conditions. The corporal punishments most often used in the navy - floggings of up to twenty-four lashes or other relatively swift measures - could be readily transposed for use in fishing outports. Commanders relied largely on the vague thirty-sixth clause in the Articles of War (which stated that where no punishment was specified or appropriate, offenders 'shall be punished according to the laws and customs in such cases used at sea'), as authority for meting out whippings with the cat-o'-nine-tails.113 As we shall see, naval surrogates in Newfoundland similarly ordered punishments with numbered lashes. Unlike the army officers at Placentia and St John's, the naval commanders had no fixed economic ties or interests to colour their appearance as impartial and fair authorities. With the squadron present for only a month or two each year, its officers often rotating with each commission, and the governors usually serving no more than three years, the Royal Navy did not become enmeshed in the divisive credit relationships and bitter petty politics commonly found in the settlers' parochial society. It is no accident that problems of corruption and insubordination were largely restricted to British army and garrison commanders such as Lieutenant Moody.114 The status of the Royal Navy was also incomparably superior. Its officers were largely drawn from the ranks of respectable society, many of whom, like Lord Vere, wielded considerable power and influence. While the social gulf separating naval officers and fish merchants has been exaggerated, few local merchants and planters could display pretensions to gentility.115 Fishing admirals might have been able to bully magistrates from their own social caste, but they dared not challenge the character of a naval commander.116 The social stature of the island's naval officers stretched

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from the petty bourgeoisie to the peerage. It reached its apogee in 1786, when Prince William Henry (later William IV), who then commanded HMS Pegasus, was stationed at Newfoundland and served as a surrogate judge at Placentia. Officers in the Royal Navy generally remained aloof from the personal attacks exchanged between the justices and admirals. If the governor chose to intervene locally, as Commodore Clinton did, he could publicly berate both factions without weakening his own authority. T H E M A J E S T Y O F NAVAL G O V E R N M E N T

The British government regularly used the Georgian navy as the standard-bearer of English law and royal sovereignty throughout the empire. The navy's presence in Newfoundland was not comparable to the nineteenth-century gunboat imperialism exhibited in China, nor the brutal subjugation of native communities in British Columbia.117 Models of the dialectic of native-European relations cannot be reasonably applied to Newfoundland, where the Royal Navy never sustained significant contact with the Beothuk.118 Although the island's sectarian divisions clearly affected naval officers, governors did not construct Newfoundland as an infidel country or an inherently barbaric frontier. Their correspondence portrayed the island as a harsh place inhabited by ignorant fishermen, but not beyond the pale of civilization. The British government was at the very least nominally committed to upholding the rule of law in Newfoundland and did not permit the indiscriminate use of military force. The judicial role of the Royal Navy functioned within the boundaries of English legal culture. Naval officers brought to the island the symbolic triumvirate of majesty, justice, and mercy. Although there are several parallels with the Anglo-French and European-Native legal relationships - particularly in the areas of accommodation to suit material conditions - the case of Newfoundland was different in that it involved a dispute within a legal culture in the process of formation.119 Displaying the navy's elaborate official ceremonies, as well as the increasingly standard Admiralty uniform, officers presented outport Newfoundland with a majesty of the law as impressive as that found in any town in rural England. Like the procession of the semi-annual assize circuit, the cruises of the Royal Navy brought an unequivocal message of legal authority and political power to local society.120 In both form and function, then, the Royal Navy was a dynamic force in the establishment of an inchoate colonial state.

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Each year the governor presided over a series of ceremonies that marked the familiar rhythm of public life. When he arrived each summer, the fort on Signal Hill boomed out a salute and the flagship moored near the centre of St John's harbour. The governor, followed by the other officers, proceeded in his launch to the King's Wharf, where he was received by the senior magistrates, the prominent local citizens, and an honour guard from the garrison. His commission was publicly read, the oaths of allegiance were administered, and the governor promptly got down to work. He dispatched his junior officers on cruises to the outport districts, where they convened surrogate courts; he corresponded and met with merchants to discuss the state of the fishery and the price of fish; and he carried out the many official instructions outlined in the heads of inquiry drawn up by the Board of Trade, which included the annual compilation of the statistical returns of the cod fishery. Once these duties were completed, the governor worked to ensure that the various convoys of merchant ships and naval escorts were properly assembled. After the voyage back to England, which usually took several weeks, he reported to the Admiralty and the secretary of state, who expected a full account of any major developments. As we shall see, during the winter months, the governor normally resided at his private residence, but he still continued to conduct official business, meeting regularly with government ministers and merchants concerned with the Newfoundland trade. In the spring he readied his squadron for the Atlantic crossing, which could entail protracted squabbles with contractors over provisions, and the flagship was often peppered with letters right up to the day it set sail. Whenever possible, governors sent their junior officers on surrogate cruises to impose the government's authority and to settle disputes in the outports. In October 1732, for example, Governor Falkingham sent Lieutenant Steevens to Trinity Bay to hear complaints against the local justices of the peace; after hearing both sides, Steevens summarily dismissed one of the magistrates from office.121 But there were material limits to how far the governor could expand the navy's presence. Lord Muskerry, governor in 1734, ordered Captain Crauford in HMS Roebuck to sail for Port-aux-Basques, in order to assert Britain's sovereignty in the region. After reaching Cape Ray, Crauford reported that the coast was so treacherous that it was not safe for any vessel larger than a sloop to sail in with the shore.122 The next year Governor Lee informed London that the naval commanders required better mapping to pilot safely because their warships drew much more water than the

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bankers used in the fishery.123 The difficulty large frigates such as the forty-four-gun, 800-ton Roebuck faced in navigating uncharted coasts and shallow harbours inhibited the further development of the surrogate system. This problem was not adequately addressed until 1749, when Governor Rodney began the practice of commissioning local sloops, and the British Admiralty eventually had schooners custom built to serve on the Newfoundland station. GAOL B U I L D I N G AND OTHER LOCAL I N I T I A T I V E S

Governors repeatedly tried to improve the island's penal regime. In 1732 Governor Falkingham found that the one functional gaol - the regional prison constructed in St John's - did not meet the island's needs because of its distance from most outports and the fact that ice conditions rendered it inaccessible during the winter. Falkingham ordered the construction of three additional gaols at Ferryland (where earlier initiatives had been aborted), Trinity, and Bonavista, as well as roundhouses at Trepassey, Bay Bulls, and Conception Bay (where no community was specified). The new prisons were never completed, however, and the outports still had no system of incarceration, save placing offenders in the stocks.124 Governors also assumed juridical responsibilities that had been formerly left to the justices of the peace. Falkingham reported that one murder suspect was being held at St. John's: for the first time, the governor and the Royal Navy handled the entire arrangements for transporting the offender and witnesses to England aboard HMS Dursley in the autumn of 1732.125 And in 1733 it was Lord Muskerry - not William Keen, the senior magistrate - who advised the British government that several prisoners were being sent to England to be tried for felonies committed the previous winter.126 As a further indication of the governor's personal authority, Muskerry used his drummer to summon opposing parties to a court convened by him to determine a long-standing property dispute.127 In 1735 Governor Lee augmented his efforts to maintain an effective judicial administration by lobbying hard for legal reforms. He informed London that prior to his arrival three suspects had been jailed in St. John's for a murder committed at Ferryland. Before Lee had an opportunity to examine the prisoners, two of them escaped; the other was apparently released for want of evidence. Lee disclosed that he had summarily levied a local tax to fund repairs to the prison in order to prevent future escapes.128 In a sign of how things had changed

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since 1730-32, this initiative to raise taxes - with neither a grand jury presentment nor a public meeting - received no comment from either the fishing admirals or the West Country magnates, both of whom were unwilling to challenge the governor's personal authority. Unlike Osborne and Clinton, Lee had acted unilaterally, without any links to the civil magistracy, and presented the initiative as entirely his own doing. He independently recommended that some type of local admiralty jurisdiction be created to combat smuggling and, as a result, the British government established a vice-admiralty court at St John's in 1736. Little is known about the early vice-admiralty court: no local records appear until the 1750s, but evidence suggests that it did sit earlier. In 1747 William Keen wrote to Thomas Corbett, the secretary of the Admiralty, to acknowledge receipt of the forms and interrogatories to be used in the vice-admiralty court, of which Keen appears to have been the chief judge.129 Governor Lee also persuaded the Board of Trade to propose granting Newfoundland its own court to hear and determine felonies. Lee noted that he had ordered Captain William Parry to cruise the Southern Shore and South Coast; at Placentia, Parry had taken aboard a prisoner suspected of a murder at Renews, as well as two material witnesses; and Lee ordered him to transport them to England in HMS Torrington. Using this incident as a backdrop, the governor offered a succinct and persuasive case for legal reform: I must here observe to your Lordships that the conviction of persons who have been guilty of murders, felonies or other capital crimes in this Island, by their trials in England is very difficult, for such people, who are the chief evidences, will always if possible abscond to avoid being carried as such to England, and I can't but say they have good reasons for so doing; for on such occasions, besides their loss of time, by their absence from their home in this country, by which they must inevitably lose the next year's fishing, after the trial of the suspected murderer, or felon, the evidences are left to return to their families, at their own expense, which may put them very much behind hand, if not ruin them in their affairs; this I thought proper to submit to your Lordships' approbation.130

Similar, if not more compelling, arguments had been made previously by the justices of the peace, but the British government did not act until Lee's appeal. In April 1738 the Board of Trade prepared to revise the governor's commission to include the power to grant a commission of

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oyer and terminer. Arguing that this reform bestowed only what was usual in the commissions of all governors of British plantations, the secretary of the Board of Trade asked the solicitor and attorney generals to advise whether it would contravene King William's Act.131 After the law officers gave their approval, the proposed amendments were at last presented before the Privy Council.132 ABORTED REFORMS AND THE ATROPHY OF LOCAL GOVERNMENT

The plan submitted by the Board of Trade described the legal exigencies and the type of court best suited to the island's conditions. It stressed that Governor Lee had precipitated the initiative, citing his 1736 report verbatim, and referred to the law officers' favourable legal opinions. The draft of the new governor's commission - to be given to Captain Philip Vanbrugh, commander of HMS Chatham in 1738 - included a clause authorizing him to establish a court of oyer and terminer for trying all criminal causes. Incorporating the same forms as those given to governors in colonial America, these powers were supplemented with restrictions designed to suit a jurisdiction without experienced judges and juries.133 Vanbrugh's draft instructions contained two significant stipulations. Only one court session was permitted per year, which could be held only during the governor's residence. Second, convicted felons could not be executed in Newfoundland without the permission of the British government. After each assize session had ended, the governor was required to send a report on each trial to London, where decisions would then be made whether to execute those offenders sentenced to death.134 However, when the Privy Council considered the commission and instructions, it rejected outright the clause empowering the Newfoundland governor to appoint a court of oyer and terminer. The order-in-council simply recorded: 'His Majesty does not think it expedient at present to be given to the said Governor.'135 No further explanation was given, but the decision was likely a reflection of the political aftermath of the West Country campaign against the island's civil magistracy. In the wake of this decision, the government and courts in Newfoundland slid into a state of relative atrophy. No reforms were attempted during the next decade; magistrates and fishing admirals rarely disturbed the status quo.136 With the outbreak of war with Spain

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in 1739, the Newfoundland squadron was busy with assisting other naval operations in North America. By the time the War of Jenkins' Ear began, the navy had extremely limited resources available to devote to governing Newfoundland. Captain Charles Hardy, appointed governor in 1744, never reached Newfoundland because of poor weather conditions. After battling contrary winds for sixty-three days, he returned to England, where he was court-martialled for failing to fulfil his duties (he was later cleared of all charges of professional misconduct). No governor appears to have been appointed in 1745; Captain Hardy spent the year commanding a squadron off the Portuguese coast.137 For the remainder of the war, the governors were too preoccupied with their military duties to make any impression as local administrators. Throughout this period, the commander-in-chief of the North American station could summon warships from Newfoundland, where the commodore had scant time to supervise the civil magistracy.138 Seeing this decline in the navy's presence, the army commander at Placentia unsuccessfully petitioned to be given the power to appoint justices of the peace.139 Meanwhile the island's economy grew, if only marginally, in spite of the war, and by 1750 the resident population had surpassed 6,000.140 When the peace of Aix-la-Chapelle freed naval officers again to govern Newfoundland, the administrative problems that had plagued Governor Osborne's tenure remained to be addressed. Complaints of anarchy and social disorder were not restricted to the 1730s: the appointment of a naval governor marked no deus ex machina for British rule in Newfoundland. Visitors continued to portray the island as a wild place where the roots of English civilization had never taken hold. This discourse is best illustrated by the reports from the Church of England missionaries sponsored by the Society for the Propagation of the Gospel. From 1760 to 1790 the clergymen sent to Newfoundland proffered a steady torrent of protests against the appalling conditions in Trinity and Harbour Grace, where they attempted to establish parishes. Accounts from Reverends Edward Langman and James Balfour depicted a primitive society plagued by privation and ignorance. Balfour's dispatch in 1779 aptly summed up this view: 'In short, there is a raging famine, nakedness, and sickness in these parts/141 The missionaries' accounts must be treated with caution because of their own vested interests and evident prejudices.142 When Balfour first settled in Trinity in 1764 he noted, 'I think these a good natured people ... they may be led but not drove.'143 Still, their correspondence provides

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valuable insights into the perceptions of law and authority in the outports. To the missionaries, outport society appeared thoroughly pagan. Balfour's report on his tour of Trinity Bay in 1772 offers a representative example: 'A most barbarous and lawless place. Here it is the usual custom to divert themselves during Sundays with the music of a piper carried in parade thro' the place. All my attempts could not bring them together to public worship. It would make any well disposed person shiver to hear the horrid conversation of profane cursing and swearing ... One league further westward I visited New Perlican where there are eight families one half English, the other Irish, they seemed to me in a state of war with one another. I endeavoured to reconcile them but to no purpose.'144 Compounding this perceived social degeneracy was the lack of an effective winter magistracy in the communities stretched along the northeast coast.145 The commissions of the peace periodically lapsed in some outports north of Conception Bay. No justice of the peace served in Trinity, for example, during the winters of 1766-72. In 1786 the justice in Bonavista appealed to the governor to send a warship to his district to help him combat rebellious fishing servants. Acknowledging that maritime navigation in Bonavista Bay was particularly hazardous, he argued that even a brief visit by a man-of-war would put an end to the disorders.146 Such calls for a stronger administration of the outports persisted well into the nineteenth century. As late as the 1840s, Newfoundland governors received dispatches from the outports essentially the same as those sent four generations earlier.147 CONCLUSION In 1729 the British government had not intended to alter the basic manner in which the island was administered. But once it had established a civil magistracy and the essential trappings of colonial government, both the governors and the justices of the peace moved to administer law as closely as possible to the English model. This in turn touched off a heated battle for political legitimacy and legal power, in which the fishing admirals asserted their new-found statutory prerogative. The trans-Atlantic struggle for authority involved West Country officials and several government departments in London. Aside from the immediate political concerns, the British government could not ignore the fishing admirals' protests. Despite the best efforts of the governors and most modern historians - the admirals could not easily be dis-

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missed as ignorant troublemakers because they offered a cogent legal argument. By appealing to the supremacy of statutory law, the fishing admirals forced the British government onto the defensive. And by the late 1730s, any pretense that the Newfoundland magistracy would function entirely according to formal English law had been abandoned. Law was not simply received in 1729 but was repeatedly established and challenged. The compromises made during the 1730s in large measure determined the structure of the island's courts. What emerged was a viable system derived from common law, written law (statute and prerogative writ), and local practices (the customs of the fishery and the Royal Navy). By the mid-eighteenth century these diverse sources of law mutually reinforced an incipient legal regime that was beginning to accumulate an informal body of case law. Newfoundland was far from unique in this respect: most other territories and settled colonies substantially altered law once it had been received from England. In arguing for a near-total transplantation of English legal culture, David Grayson Allen overstates his case. Reception generally followed the experience of Nova Scotia, where, as Jim Phillips argues, English law was altered in practice and amended by legislation debated and passed in the colonial assembly.148 The difference for pre-1832 Newfoundland was the absence of a legislative assembly, but this did not mean that law was not adapted to meet local needs. Rather, the process of shaping law to suit the island's material conditions and legal traditions took place in local courts rather than a colonial legislature. Cycles of antagonism and accommodation engendered the beginnings of an unusual yet effective hybrid of lex scripta [written law] and lex loci [law of the local place]. Neither of these sources of law was popular, in the sense of originating from the plebeian servants or being designed for their use. As we have seen, E.P. Thompson's model of opposing law (a proto-capitalist force in the transition to an industrial economy) and custom (the means to resist the encroachment of bourgeois hegemony through a defensive claim to ancient local practices that constitute law), does not apply to the case of early Newfoundland.149 The struggle in Newfoundland was between competing forces within the law of the ruling elites. How local modes of governance developed can be understood only in the context of the socio-economic forces that formed the material basis of the island's legal culture. Newfoundland did not have a class of landed gentry, professionals, or prosperous farmers with which to staff the magistracy; it had neither a local press nor an established group of trained lawyers and lacked the basis

98 The Rule of the Admirals for a bourgeois public sphere in which to debate legal issues; and the resident planters and traders were politically outweighed by the West Country merchants, the majority of whom had little time for, or interest in, the local administration of justice. But the island did have the regular and assertive presence of the Royal Navy. Naval officers were both willing and able to manage local government. When used to effect, the navy's efficient administrative apparatus provided a system of communication and transport to deal effectively with problems in the outports. As career officers of a comparatively high social standing without locally vested economic interests, the governors successfully enforced their personal authority. During critical periods, governors used their junior officers to extend law and order beyond St John's. Ultimately, the struggle for legal authority would be won by neither the justices nor the fishing admirals, but by the Royal Navy and its officers. APPENDIX 3.1 THE N E W F O U N D L A N D C O M M I S S I O N OF THE PEACE

A new set of commissions of the peace was issued every three years at the beginning of a governor's tenure. It was typically conferred by a naval officer, who brought a blank commission to the districts and then arranged for the names to be entered and for the candidates for office to take the necessary oaths. To be removed from office was - both literally and figuratively - to be struck off the commission. The position of keeper of the rolls brought additional emoluments and was in practice given to the most senior justice in each district. The section highlighted in italics comprises the regulations and orders that were specific to the Newfoundland version of the commission. The remainder of the commission is virtually identical to that used in Georgian England: By Henry Osborne, Esqr. Governor and Commander in Chief in and over the Island of Newfoundland in America, the Fort and Garrison of Placentia, and all other Forts and Garrisons Erected or to be Erected in that Island. By virtue of the power and authority given and granted unto me by letters patents at Westminster the One and Thirtieth of May in the Sec-

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ond Year of the Reign of George the Second by the Grace of God, of Great Britain, France & Ireland, King Defender of the Faith, To constitute and appoint Justices of the Peace with other necessary officers and ministers for the better administration of justice and keeping the peace and quiet in the Island of Newfoundland in America. I do constitute and appoint you A.B.C. jointly and severally and every one of you, His Majesty's Justices to Preserve the Peace in the Towns of [- blank -] and parts adjacent thereto in the Island of Newfoundland in America. And to keep and cause to be kept all Ordinances and Statutes set forth and published for the good of the Peace & for the preservation thereof, in all and singular point withing the Towns of [- blank -] and parts adjacent thereto. And to correct & punish all Delinquents in the said Towns of [- blank -] and parts adjacent thereto, that shall do any thing against the forms of those Statutes and Ordinances or any of them. And to make all those who shall either assault the bodies or threaten to fire the houses of any or some of His Majesty's good People, to find sufficient security for their peaceable and good behaviour towards His Majesty and His People before some of you. And if they shall refuse to find such security then you shall cause them to be detained in His Majesty's Prison until they shall find such security. You or any two or more of you are authorized and appointed to enquire upon Oath of honest and legal men of the Towns and parts adjacent thereto aforesaid by which the truth of the matter shall better be known of all witchcrafts, enchantments, sorceries, magick-arts, transgressions, by forestalling, regrating, or extortions whatsoever, and if all and every other offences and malefaction of which the Justices of His Majesty's Peace may and ought lawfully to enquire, by whomsoever or howsoever done and committed, in the towns and parts adjacent thereto aforesaid or shall hereafter happen to be done or attempted. Also to enquire after all those who in the towns and parts adjacent thereto aforesaid, shall go or reside, or hereafter shall presume to go or reside in a riotous manner, or with an armed force against the Peace to the molestation and disturbance of His Majesty's People, and also of all Hucksters & all other singular persons who have offended or attempted or hereafter shall presume to offend or attempt to offend, in an abuse of weights, or measures, or in selling victuals contrary to the form of the ordinances and statutes, or some one of them set forth and published, for the common benefit of His Majesty's Kingdom of Great Britain and the People thereof, and of whatsoever bailiffs, seneschals, constables, gaolkeepers, or other offic-

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ers, who in the execution of their office (concerning the premises of some of them) have behaved themselves unduly or hereafter shall presume to behave themselves so, or have been slack, remiss, or negligent, or hereafter shall happen to be so in the towns or parts adjacent thereto aforesaid, and of all and singular points and circumstances or other matters whatsoever or howsoever done and committed in the towns and parts adjacent thereto aforesaid or which shall hereafter happen to be done or attempted, which may more fully concern the truth of the premises or someone of them. And to inspect whatsoever indictments are to be taken (and are not yet terminated) before others lately Justices of Peace in the towns and parts adjacent thereto aforesaid; And to issue and continue processes thereupon against all and every one so indicted or may hereafter happen to be indicted before you, until they may be taken, or surrender themselves, and be outlawed. And to hear and determine all and singular felonies, witchcrafts, enchantments, sorceries, magickarts, transgressions, extortions, riots, indictments aforesaid; and all and other the several premises according to the Laws and Statutes of His Majesty's Kingdom of Great Britain (as in that case is wont or ought to be done) And to cashire and punish said delinquents and any of them for their faults and offences, by fines, redemptions or amerciaments, or in any other manner, as is usual or ought to be done, according to the Law and Custom of the Kingdom of Great Britain, or the tenour of the ordinances and statutes aforesaid. Always provided that if cases of difficulty shall chance to happen such as robberies, murthers, and felonies and all other capital crimes, you or any of you, shall by no means proceed to give judgment, but take particular care that all persons guilty of such capital offences be sent over to the Kingdom of Great Britain with witnesses, and sufficient proof of their crimes along with them. And therefore you and every one of you are hereby required that you diligently attend to the keeping of the Peace, of the ordinances and statutes and of all and singular other premises, and that you moreover appoint certain days and places, when you and every one of you shall meet to hold and keep general Quarter Sessions of the Peace, and to make enquiry, and to hear and determine all and every the premises and to do and fulfill them in form and manner aforesaid and to adjourn such sessions from time to time and from place to place as shall be most convenient for the dispatch of justice and necessary for the peace and welfare of His Majesty's subjects, according to the Laws and Customs of that part of the Kingdom of Great Britain called England, saving to His Majesty amerciaments and

An Unruly Set of People 101 all other thing appertaining to Him. You or any two or more of you, by virtue of these presents may cause to appear before you at certain days and places, which you or some two of you as is aforesaid, shall cause to be known so many, and such honest and lawful men of this district by whom the truth of the matter may be more certainly known and enquired into, and furthermore you and every one of you are hereby required and directed to appoint as aforesaid General Quarter Sessions of the Peace, out of such the inhabitants and planters residing and abiding in the towns and parts adjacent thereto aforesaid, a proper number of constables and other ministers of justice as are necessary toward preserving the peace and quiet of His Majesty's subject. Provided also that no such person or persons or other officers and ministers so by you appointed, presume or be suffered to act in such officers or places until he or they have taken the oaths mentioned in an Act passed in the 1st year of the reign of His Majesty King George the First, entitled An Act for the further security of the crown in the Heirs of the late Princess Sophia being Protestants and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abettors; and also to make and subscribe the declaration mentioned in an Act of Parliament made in the 25th year of the reign of King Charles the Second, entitled An Act for preventing dangers which may happen from Popish recusants, and also have took such proper oath or oaths, as are usually taken in the Kingdom of Great Britain by persons executing such offices and trusts, which oaths and declaration you are jointly hereby authorized and empowered to administer and give to all and every person and persons who ought to take the same, according to the Laws and Customs of Great Britain, and that you nor any of you do any thing by virtue of these presents contrary or repugnant to the Act for Encouraging the Trade to Newfoundland, passed in the 10th and I I t h of the Reign of King William the 3rd, nor in any manner obstruct the power thereby given and granted to the Admirals of the Harbour or Captains of the ships of war, or any other matter or thing either prescribed by the said act or by such instruments as you shall receive from me. But that you now any of you and your said inferior officers and ministers whom I or you shall appoint amongst the planters or inhabitants residing or abiding in the towns and parts adjacent thereto aforesaid, be strictly required and enjoined in all cases and time whenever necessary to be aiding and assisting to the utmost of their power to the commodore or commanders of the ships of war and to the several Admirals in their respective harbours, in executing the several good rules and orders prescribed by the said Act for Encouraging the Trade to Newfoundland. I do hereby strictly

102 The Rule of the Admirals require all and singular the inhabitants and planters of the towns and parts adjacent thereto aforesaid, to be observant, aiding and assisting unto you and every one of you and the officers and ministers appointed by you and every one of you in preserving the Peace and Execution of the Powers and Authorities herein contained as they will answer the contrary. Finally, I have appointed you [- blank -] keeper of the Rolls of the King's Peace in the said towns and parts adjacent thereto, and for that reason you are to order on the days and at the places aforesaid all briefs, processes, and indictments aforesaid, to come before you and your appointed associates, that they may be inspected and determined in due course of Law as is beforesaid. In testimony whereof I have hereunto affixed my hand and seal. Given the day and date hereof. Source: PRO, CO 194/8 (undated enclosure, [c. 1730]), 228-32. Spelling and capitalization have been modified. APPENDIX 3.2 R E P O R T ON THE L E G A L P O W E R S OF THE F I S H I N G A D M I R A L S , 1731

Copy of a memorandum from Francis Fane to the Board of Trade, 24 March 1731, PRO, CO 194/9,140. A printed extract of this report appears at CSPC, vol. 38, 76. Fane's cogent report illustrates that contemporaries were well aware of the limited jurisdiction conferred by King William's Act, which was seen as a flawed statute: I have considered the said Act and commissions, and as to the first querie whether the powers given to the fishing admirals by the said act do in any respect interfere with those given to the civil magistrates by their commissions -1 am humbly of opinion they do not because their powers are entirely distinct. The Fishing Admirals have no powers but what arise from the Act of the 10th and 11th of K. William III, and those confined to the fishing - and the Justices can no more interfere with them in regard to such powers than the fishing Admirals can interfere with the justices in the powers given them by their commission 2nd - Whether the fishing admirals have any power to send warrants to the constables, to commit to prison or to the stocks or whether the said fishing admirals are subordinate to the civil magistrate?

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I apprehend that the fishing admirals have no power to send warrants to the constables or commit to prison or the stocks: They are indeed by the Act of King William directed to see that law put in execution but there is no power given them by that law to levy penalties or inflict punishments and therefore I am inclined to think any proceeding of that sort could not be justified: The want of it is certainly a defect in the statute of King William for it is impossible to put that law effectually in execution unless the persons in authority had such powers. I think the fishing admirals are subordinate to the justices in everything but what relates to their fishing authority. 3 - Whether the justices of the peace in Newfoundland may act by virtue of the statute laws of this Kingdom? I apprehend that all the statute laws made here previous to his Majesty's subjects settling in Newfoundland are in force there: it being a settlement in an infidel country: But as to the laws passed here subsequent to the settlement I take it they will not extend to this country unless it is particularly mentioned. 4th - Whether the Governor of Newfoundland may act as Justice of the Peace and sit at their Quarter Sessions or other meetings as such? I do not think the Governor himself can act as a Justice of the Peace for I observe the power from his Majesty is only to appoint fit persons for the administration of Justice. Spelling and capitalization have been modified.

4

The Establishment of Naval Government

From 1749 to 1751 Newfoundland witnessed the single most important series of legal reforms undertaken prior to the grant of representative government. In what amounted to a revolution in government, Captain George Brydges Rodney, appointed governor in 1749, launched an array of initiatives that reshaped both the forms and function of governance. His activities have never been adequately addressed by Newfoundland historians.1 Governor Rodney's policies centralized government in a manner never before attempted: by the mid-1750s the Royal Navy had firmly staked its claim as the unquestioned arbiter of power and authority. The creation of a local collection of court records legitimized this process, and Rodney oversaw the first efforts to establish a bureaucratic framework to facilitate the smooth operation of courts in St. John's and the outports. His tenure as commodore also witnessed the foundation of three courts that became pillars of the judiciary: the governor's court, the surrogate courts, and the court of oyer and terminer. These administrative reforms marked the emergence of the system of naval government that would dominate Newfoundland for the rest of the century. This chapter examines these reforms and their implication for the reception of law and the operation of government. It also considers the ad hoc committees of merchants and prominent townspeople that were convened, ordinarily under the direction of a magistrate, to discuss local problems and to approve taxes to fund specific initiatives.

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This custom can be traced in the archival records fairly clearly, but the reception of English law is a much thornier topic. Whereas some commentary was made on civil law, criminal law in Newfoundland went virtually unremarked by both judges and government officials. Still, those in power displayed a shared understanding of how local institutions were supposed to work. Evidence suggests that imperial statutes were applied in Newfoundland ex proprio vigore [by their own force] until the establishment of a local legislature in 1832. For property law and the law of master and servant, the courts were guided by specific statutes relating to Newfoundland; for criminal law, magistrates followed English jurisprudence. Although the development of law remains rather abstruse, the direction of state formation was unequivocally clear. In the second half of the eighteenth century, the island experienced the ascendency of naval rule. THE ORIGINS OF REFORM

The initiatives in Newfoundland coincided with the reform movement that swept London in the aftermath of the Peace of Aix-La-Chapelle. As historians of colonial America have noted, it was during the late 1740s that the British government began seriously to strengthen and centralize the administration of its Atlantic empire.2 Domestic politics reinforced imperial reform: pushed by a wave of fear over rising urban crime and social disorder, the British government took the unprecedented step of establishing a parliamentary committee in 1751 to recommend changes to the criminal law. Public opinion and the press focused on the crime problem, and writers such as Henry Fielding and Samuel Johnson offered a mixed prescription of legal reform and penal retribution. Comprised of the prime minister, Henry Pelham, and other prominent politicians, the committee presented a wide-ranging report that linked social concerns, particularly vagrancy and brothels, to the need for more effective policing and punishment, and sponsored three main pieces of legislation: the Disorderly Houses Act; the Murder Act; and the Dockyards Bill, which stalled in the House of Lords.3 The Dockyards Bill illustrated not only the government's efforts to find an alternative to transportation but also - and of direct consequence for Newfoundland - the willingness of the Admiralty to become actively involved in formulating criminal justice policy. Led by Admiral Edward Vernon, the populist hero of Puerto Bello, the Royal Navy had figured prominently in English politics during Walpole's ministry, and

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most of its officers were not prepared simply to retire on half-pay after the peace of 1748. Though Vernon served on the committee of 1751, it was Lord Anson, the powerful first lord of the Admiralty, who was the patron of the Dockyards Bill and the driving force for reform in the Royal Navy.4 From the first lord's perspective, the Newfoundland station was a useful tool for furthering his administrative and political aims. The power of the Admiralty Board rested in its ability to reward loyal followers, and its leaders - successively the Duke of Bedford, Lord Sandwich, and Lord Anson - carefully factored political patronage into their decisions. With numerous ambitious officers facing a dearth of prospects for advancement, the appointment as commodore of the island's squadron was highly valued. The flagship of the Newfoundland squadron, HMS Rainbow, was one of the coveted warships to remain in full commission: it was part of the convoy that escorted King George II to Holland in 1750, and the following year it hosted a formal inspection by the entire Board of Admiralty and a parade of dignitaries. In addition to bestowing a temporary promotion on a post-captain, the commission as commodore and thereby governor of Newfoundland brought the honorific title of Excellency, three years of secure employment, and the chance to earn extra income carrying freight on the return voyage from Lisbon to Portsmouth.5 The Newfoundland governor was also given the opportunity to meet officials personally at Whitehall and to correspond confidentially with the first lord of the Admiralty and the secretary of state. It is not surprising that the Admiralty decided to appoint Captain George Brydges Rodney as governor of Newfoundland. In February 1749, when a controversy had erupted among officers over reforms initiated by Lord Anson, Captain Rodney sided with his mentor and supported the ministry.6 Equally important, Rodney's political patron, the Duke of Bedford, was now serving as secretary of state, whose endorsement was necessary because the governorship of Newfoundland was a Crown appointment. This remarkably strong political support ensured that, as governor of Newfoundland, Rodney would receive the full backing of the British government. When a committee at the Board of Trade met to consider Rodney's appointment in April 1749, the decision was a fait accompli. Rodney formally held the title of governor for only a year and resigned in 1750. He stepped down because he had anticipated being elected to one of the boroughs controlled by the Duke of Bedford, but retained his commission as captain of HMS Rainbow

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and commodore of the Newfoundland squadron.7 While Captain Francis William Drake of HMS Mercury was the titular head of the island's government in 1750-1, Rodney remained the unquestioned de facto governor throughout his three years at Newfoundland. 8 To the office of governor, Captain Rodney brought the reforming zeal of an ambitious officer looking for the chance to make his mark. Since the outbreak of peace left no opportunities to distinguish himself in action, the Newfoundland station represented one of the few immediate chances to impress his patrons.9 Rodney's administration reveals how individual initiative could transform the governance of a territory without a local legislature. His tenure as governor also demonstrated how political trends in London directly affected events in Newfoundland. In English politics the movement in favour of reform did not necessarily advocate greater humanitarian concern but rather a commitment to more effective government generally and more forceful criminal laws in particular. Equally important, in the late 1740s the British government began to pay much greater attention to colonial affairs, as the political faction led by the Duke of Bedford favoured consolidating imperial power and cracking down on the spread of political autonomy in North America.10 Although Rodney had a controversial reputation in his later career, in 1749 he acted in accordance with these reformist tenets. Commodore Rodney decided from the outset to undertake whatever measures were necessary to facilitate his administration.11 Having previously visited Newfoundland as a lieutenant under Lord Vere Beauclerk, Rodney took great pains to prepare properly before leaving England. While HMS Rainbow was in the dockyard at Woolwich in March 1749, Rodney requested a series of improvements that betrayed a practical knowledge of conditions in Newfoundland. The Admiralty approved a number of changes to his flagship: a steerage before the great cabin at the bulkhead, where a small office was built for his clerk to keep his books and accounts; a cabin on the quarter-deck for the officers; and an awning attached to the mizen mast designed to protect the men from inclement weather.12 The custom-built cabin for the commodore's clerk facilitated his additional duties as secretary to the governor and clerk of the courts at St John's. It was in this room that the island's first systematic legal records were compiled. Over the next three years Rodney presided over a variety of projects, such as the building of a hospital at St John's, the construction of a brewery to supply the navy and the clearing of local land by his ship's company.

108 The Rule of the Admirals THE B E G I N N I N G OF LOCAL COURT RECORDS

In 1749 Governor Rodney created the island's first repository for local records. Known popularly as the 'Colonial Secretary's Letterbook/ the collection begun by Rodney recast government in Newfoundland.13 As we have seen, no formal court records were kept on the island prior to 1749: only documents sent directly to England or included in the Board of Trade's heads of inquiry were preserved. The Letterbook is arguably the most valuable archival source for the study of early Newfoundland. Known publicly since Judge Prowse's time, it has been rarely used for eighteenth-century studies. Bound in annual volumes, it contains all of the materials compiled and collected by the governor's clerk: the court proceedings for St John's, with copies from many of the outport districts; governor's commissions and public decrees; official correspondence and court orders; and judicial warrants and commissions of the peace. While the records in the Colonial Office Papers overlap somewhat with the Colonial Secretary's Letterbook, only the latter holds the bulk of legal minutiae produced by local courts. It functioned in a manner similar to the collection of naval documents maintained by Rodney's clerk and its format suggests that it was analogous to the type of military records commonly kept by officers in both the British army and the Royal Navy.14 The Letterbook institutionalized law and government in a manner never before attempted and formed the basis of an inchoate public sphere. Soon after its establishment, it became a public registry for documents such as deeds, bills of sale, and indentures. In spite of official British policy - in theory, Newfoundland was still nothing more than a seasonal fishing station - the island had acquired a vital criterion of an effective colonial state. It now had a formal record of local law, separate from that kept by officials in London, and the basic framework on which to build a written legal culture. The creation of record-keeping facilitated the entrenchment of customary law by providing an account of legal precedents. This process of recording local laws took place under the rubric of the common law: accepted customs could be only local variations of the general law and could not breach any fundamental principle of the common law.15 Over time, the known customary laws of Newfoundland were duly recognized by the naval government. When Justice Reeves summarized the island's judicature in 1793, he affirmed that the customary law of Newfoundland should have ascendancy as long as the particu-

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109

lar customs had genuine usage and were not irregularities or abuses of local norms.16 In his testimony before the House of Commons, Reeves described how he had tried to record the many customs he had encountered while on the bench. He personally interviewed people to find out what had been practised earlier in the century. Reeves asserted: 'I know of no other way of collecting together the usages and customs of that place; and when they are thus collected, they will become the law of the place, without needing any sanction from Parliament, in the same manner as the Law of England is to be found in the books where decisions are reported.'17 Reeves's comments came in the midst of several references to customs that had already been legally recognized. When officials sought to ascertain the origins of the island's customary law, they consulted the Colonial Secretary's Letterbook.18 Within two generations, therefore, Rodney's Letterbook had entered the realm of legal antiquity. By chronicling the accumulation of case law, the Letterbook made possible the local development of written legal knowledge. I N V E N T I N G J U R I S D I C T I O N S (l): THE SURROGATE COURTS

Governor Rodney also transformed the practice of sending junior officers on cruises into an organized system of surrogate courts that reached into nearly every major fishing outport. Rodney began by formalizing the custom of using warships to administer law in the outports. Within a week of warping into St John's harbour, he ordered his officers to patrol the Newfoundland coast and to call at all the major outports. Captain Jonathan Knight, in the sloop Saltash, sailed south to visit communities along the Southern Shore and Placentia Bay, while Captain Francis Drake proceeded north in HMS Mercury along Conception and Trinity Bays, as far as Cape Bonavista. Rodney gave Drake and Knight written instructions to supplement their commissions from the Admiralty, and a blank commission of the peace to be bestowed on 'men of probity and good character.' The captains' formal responsibilities were to hear cases upon appeal from the fishing admirals and to ensure the enforcement of King William's Act. Informally, they were expected to settle all outstanding disputes and to refer difficult cases to St John's, where the governor would issue additional orders as circumstances dictated. 14 Governor Rodney decided to augment this arrangement with two additional floating surrogate courts. He informed the Admiralty that

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he had received a steady stream of complaints, from almost every part of the island, of illegal trading practices in the fishery and a general lack of law and order. Rodney reported: 'I have been necessitated to hire two small vessels in each of which I have put a lieutenant and a sufficient number of men, with orders, one to repair to the Northern parts the other to the Southern, there to administer justice; settle and determine all disputes that may have arisen agreeable to the instructions I have given them on that head/20 Treated at the time as a purely temporary expedient, this move marked a turning point in the history of the island's legal system. The Royal Navy had now explicitly committed itself to being the primary agency for the administration of law. With the practice of leasing local sloops - successive governors would contract the building of specifically designed vessels, which became known popularly as the King's Schooners - the navy extended the government's reach into harbours and coves that the larger frigates had been unable to navigate. This signalled that the Royal Navy had become a dominant legal force unwilling to leave local governance in the hands of either fishing admirals or justices of the peace. Rodney centralized the process of information-gathering by hiring another sloop and sending a crew around the island to compile the data needed for the Board of Trade's annual heads of inquiry. To confirm the legal authority of the officers sent on surrogate cruises, Rodney created a new jurisdiction. Unlike Captains Knight and Drake, the lieutenants to whom he had given the responsibility to convene surrogate courts had no commission from the Admiralty to command a warship. Rodney therefore had his clerk draft two new commissions, which were given to Lieutenants Robert Falkland and Lord Balenden before they sailed from St John's. As Falkland's commission records, the officers were given conspicuously broad powers: 'Whereas divers complaints have been made to me, by the inhabitants of the northern parts of this Island of many illegal practices committed by several people and the great want there of a proper person to administer justice, to prevent the like evil for the future. Being therefore convinced at your good sense integrity and judgement I do hereby require and direct you forwith to repair to Bonavista and the ports adjacent, and there hear and determine all such causes as shall come before you agreeable to the commission herewith given to you.'21 In his exhaustive report submitted to the British government in 1789, Admiral Mark Milbanke testified that such commissions had no foundation in formal law but were nevertheless a mainstay of the island's judicial regime.22

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This surrogate's commission became a fixture of the Newfoundland legal system. Within a decade it had become as standardized as the commission of the peace.23 Over fifty such commissions were issued in St John's prior to 1791, when civilians began to be appointed alongside officers to the surrogate bench. Governor Milbanke's report gave a generic example of the surrogate's commission: 'I do hereby appoint you [XXX] to be my Deputy or Surrogate, with full Power and Authority to assemble Courts within the District of [XXX] to enquire into all such Complaints as shall be brought before you, except such as are excepted in the Instructions annexed, and to hear and determine the same to all Intents and Purposes as I myself might or could do by virtue of the Power vested in me.'24 Legally, of course, this conferred a power no greater than the governor's own appellate jurisdiction. But in practice the commission represented an authority superior to both the magistrates' commission of the peace and the fishing admirals' statutory prerogative. In effect, while in session the surrogate court was the highest jurisdiction in the districts outside St John's. The instructions that accompanied the surrogate's commission directed the officers to assume complete authority upon entering a harbour. As Rodney's orders to Lord Balenden illustrate, these included a wide range of responsibilities: 1st - Herewith you will receive a commission giving you power to administer justice agreeable to the laws and customs of the country, and an Act of Parliament [King William's Act]. 2nd - On your going into any port you are to summon the principal inhabitants and all his Majesty's officers civil and military, when you are to cause your commission to be read with all decency and respect. 3rd - You will receive herewith a commission appointing justices of the peace for the District of Ferryland, which you are to deliver them, after administering to them the proper oaths, copies of which you will herewith receive. 4th - You are likewise to tender the oaths to all the inhabitants at the places you call in at, and procure exact accounts of the number of Protestants and Papists inhabiting each port. 5th - You will receive a general scheme of the fishery, which you are to fill up agreeable to the ports you call at. 6th - You are to take notice that all causes relating to the fishery are first to be heard by the Admirals of the respective harbours, the parties aggrieved have an appeal to you, but in case there is no Admiral in port, you are to decide the cause yourself.25

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Significantly, the first clause placed the customs of the country on an equal footing with statutory law: it formally recognized the customary laws by which the island had been governed for generations. While Lord Balenden was ordered to uphold statute law, he was also expected to contravene it by hearing cases summarily when the fishing admirals were out to sea, a situation that occurred frequently during the busy fishing season. The surrogate's instructions tacitly acknowledged that King William's Act provided an insufficient basis on which to administer law. Naval officers became the undisputed vehicle for transmitting the majesty of the law. Although the shift in legal powers had begun in the 1730s, the surrogate system was fully legitimized only under Rodney's tutelage. After 1750 the fishing admirals were no longer an independent force and never again did they challenge the governor's authority. In many instances, they were co-opted into assisting the naval officers' courts. The justices of the peace also became absorbed into this naval regime, although the final process of amalgamating the civil/district and naval/surrogate systems took another decade to complete. Legal semantics remained eclectic: as late as the 1780s officers still employed a mixture of titles, most often deputy governor, to denote their surrogate's commission. Their proceedings employed a variety of terms usually General Court or Surrogate Court of Sessions - to describe the same surrogate court. Chief Justice Reeves speculated that the surrogacy had been an idea borrowed from admiralty law,26 though the term was used commonly in ecclesiastical jurisdictions to denote proctors who convened courts on the authority of a senior judge.27 The island's surrogate court was, in fact, simply a more formal organization of judicial practices that had operated in various forms since the seventeenth century. As we have seen, the custom of using naval officers to settle local disputes dated back to at least 1680 and had been reported to the British government as early as 1701, but it was only in 1749 that the Royal Navy finally emerged as the acknowledged nexus of law and authority throughout Newfoundland. In short, Governor Rodney successfully recast the island's lex non scripta as the king's law. EVALUATING THE SURROGATE COURTS

The surrogate courts system was the most practicable available framework in which to administer law. Even if the British government had been willing and able to construct roads as overland links to the out-

The Establishment of Naval Government 113

ports, sailing ships would still be a far more efficient means of transport. Nearly every settlement in Newfoundland sat immediately on the coast, and the island's interior was largely unknown to Europeans. Lengthy excursions inland were usually made only to hunt, trap, or collect firewood. With favourable winds a sloop could make the run from Trinity to St John's harbour in less than two days; two hundred years later, to drive by automobile between the two communities was still a day-long journey. The problem was that weather conditions often forced delays and made many cruises quite hazardous. Justice Reeves saw this as a serious drawback to the surrogate system, though he still viewed the surrogate courts as crucially important to the administration of justice in the outports.28 Yet this was true for every fishing ship and applied to road travel as well. Surrogate cruises were restricted to the months the Royal Navy was stationed at Newfoundland - usually from mid-summer to early autumn - but historians have exaggerated the degree to which this hampered the navy's effectiveness.29 Few ships sailed freely around the island until the ice had cleared in May, and maritime traffic slowed considerably when winter storms began hitting the coast in late November. In other words, even if the Royal Navy had been stationed at Newfoundland year-round, its officers would have been unable to sail on regular surrogate cruises for the better part of six months each year. The annual courts held by the governor and the surrogates reflected the seasonal nature of the eighteenth-century fishery. As a proportion of the population, permanent settlers had steadily increased but were still dwarfed by the thousands who came over each year to work in the summer fishery. In 1763, for example, the population was calculated at 13,112 in the summer and 7,497 in the winter.30 Justice, which the civil magistrates provided, was unquestionably needed year-round, but it was particularly imperative when the population climaxed during the summer: virtually every important economic activity took place during the late summer and early autumn. Effective courts were especially needed from mid-August to late September. This period witnessed four major events: breaking the price of fish in August, in which the governor consulted with the merchants to determine the rate for the season's catch; culling the fish locally to determine its market-grade; loading quintals of salted cod fish, during which disputes over ownership and thefts often occurred; and settling contracts, in particular servants' covenants, when quarrels over outstanding wages regularly produced a series of petitions and

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complaints.31 The surrogate and governor's courts were convened purposely to coincide with the needs of the local economy. Not only did the governor's court arbitrate civil disputes each autumn, for example, it also fined those who contravened the set price for provisions.32 By the time the naval squadron was ready to set sail with the fishing fleet in the autumn, few serious cases remained to be heard. Equally important, the cost of the surrogate system was met entirely by the imperial government. No records exist of any naval officers ever receiving special emoluments or additional pay for working as surrogate judges. The governor received a salary of £500 but did not accept any known payments for operating his court at St John's. By contrast, other local officials - the prison keeper, constable, beadle, and clerk charged at least one shilling each time their services were used.33 The commissioners of oyer and terminer and the sheriff were each paid two guineas for every trial at the assizes.34 A New England physician visiting Newfoundland estimated the cost of prosecuting a typical case at the court of oyer and terminer to be twenty pounds. Judging this to be an exorbitant expense, he claimed that those victimized by crime were so distressed at the prospect of having to pay the court fees that they often decided not to prosecute.35 When civilians began to sit on the surrogate bench after 1790, Justice Reeves warned that acquiring a sufficient number of qualified men to serve as justices for reasonable pay was the judiciary's most pressing problem.36 The use of warships provided a substitute for much of the machinery needed to operate a system of courts. Every rated warship on the Newfoundland station had a clerk proficient in record-keeping; the flagship usually had a company of marines assigned to serve under the commodore; and some vessels carried chaplains who were active in the fishing communities.37 Even the smallest schooners and armed sloops could serve as temporary prison facilities to confine offenders awaiting punishment or transport to the St John's gaol. The court of oyer and terminer depended upon warships to ensure that offenders in the outports were brought to the annual assizes held at St John's. INVENTING JURISDICTIONS

(2): T H E G O V E R N O R ' S

COURT

Captain Rodney's next move was to establish a governor's court. A direct by-product of the drive to centralize authority, this third reform became an integral part of the island's judiciary. Like the surrogates' proceedings, this court had no legal foundation beyond the governor's

The Establishment of Naval Government 115 instructions and the appellate jurisdiction granted by King William's Act, As we have seen, in 1731 the solicitor general had ruled that the governor could not legally sit as a justice of the peace but could only appoint others to that office. However, if Rodney had been aware of this restriction, he entirely disregarded it. He created his own personal court at St John's to hear and determine a variety of cases, both written petitions (many of which he could hear legally as appeals), and complaints brought viva voce [orally] in a manner similar to the sessions held by justices in the outport districts. Unlike the general courts convened by commodores in the 1710s, naval governors no longer shared the bench with the fishing admirals, although the St John's justices often attended as assistants. In a treatise on Newfoundland law, Archibald Buchanan, a resident justice of the peace, offered by far the best surviving account of the governor's court. 38 Buchanan began by noting that the governors had used their appellate jurisdiction granted by King William's Act as a basis for hearing a wide range of cases, such as actions for the recovery of debts.19 He then compared this prerogative to the powers wielded by governors of other British possessions: while governors of colonies such as the West Indies had a commission to preside over courts of Chancery, the Newfoundland governors had no such legal powers vested in them; and unlike the American colonies, the island had no courts of civil judicature. 40 Buchanan claimed that some Newfoundland governors presided over sessions very similar to courts of Chancery, while others refused to exceed their specific appellate authority; but the custom of holding governor's courts had never been formally sanctioned in law. 41 As Buchanan explained, 'Some of the Governors of Newfoundland have held courts (known by the name of the Governor's Courts) for determining actions of debt and causes of contested property not properly cognizable by Justices of the Peace.' The truth is,' he continued, 'there is no court, legally established, at Newfoundland for determining questions at common law, which exceed the powers of Justices of the Peace.'42 Buchanan suggested that the British government formally give naval governors the authority to convene courts of judicature competent to hear actions at common law beyond the jurisdiction of justices of the peace. The most compelling reason to confer such a power on the governor was, he affirmed, the fact that 'the people of Newfoundland are disposed to believe that the Governors have the power of holding courts of this sort, if they chuse to exert it.'43 The customary governor's court became entrenched in the island's

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legal culture in large measure because it had been so firmly established by Governor Rodney. When Rodney inaugurated the governor's court in 1749, he relied on his personal authority to enforce its administration. The opening of the first court in September 1749 constituted a public demonstration of the governor's power: the principal inhabitants were assembled in the courtroom; the various oaths (of allegiance, supremacy, abjuration, and declaration) were administered before the entire assembly; and the list of petitions and complaints was presented to the governor and read out in court.44 During this session Rodney heard five cases brought by written petition, attested to personally by the deponents, only one of which was attended by the defendant. One petition was for trespass, while the other four alleged instances of violent assaults. Three of these charged a planter and his servants in Conception Bay with beating and whipping local fishermen; Rodney responded by ordering warrants sent to the district's magistrates to apprehend the accused and bring them before the next sitting of the court. When none of the defendants answered the summons, Rodney ordered warrants for contempt of court to be served by the justices of the peace.45 Effectively assuming the role of chief justice, Governor Rodney worked to ensure that the authority of his court was properly respected. In a letter to the Conception Bay justices, who had not promptly acknowledged receipt of his warrants, he admonished them for neglect of duty and warned them never to do so again. His rebuke illustrates the personal nature of the governor's administration, on which his reforms depended: 'Your behaviour in this affair has obliged me to reprimand you in this manner, for remember Gentlemen, I am sent here to administer Justice to Rich and Poor, without Favour or Partiality; you likewise by the oath you have taken, as Justices of the Peace, are obliged to do the same, in the neglect of which you will not only foreswear yourselves, but be liable to be severely punished, according to law, and you may depend upon it, I am not to be trifled with, in the execution of my office; this much I hope will suffice, to remind you of your duty and make you more diligent in the execution thereof for the future.'46 The governor's court heard twenty more civil suits, ranging from petitions for wages to disputes over property ownership, before Rodney returned to England in October 1749. In addition, shortly before he left, the St. John's justices held a general session of the peace. It is unknown whether Commodore Rodney attended this court - it seems to have functioned as an autumn quarter sessions - but it did proceed to hear three cases that had origi-

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nated in the governor's court.47 Based on Rodney's precedent in 174951, the governor's court assumed primarily a civil jurisdiction and apparently never proceeded by indictment. It heard a wide range of causes and petitions involving misdemeanours, particularly assault, many of which were then tried at the St John's quarter sessions. It must be noted that Rodney was well aware of the limitations of this court. On 3 October 1749 he heard Miller v. Playters, in which the plaintiff (a bankrupted merchant) sued his clerk (to whom he had given power of attorney) to recover his effects. The defendant refused to cooperate until the plaintiff had given him sufficient security to cover £6,075 drawn in bills of exchange. Rodney then ruled: The Court having referred all these affairs of Robert Miller and Lionel Playters to be determined in England as they are of too much consequence and too complicated in nature to be determined without the opinion of the ablest lawyers.'48 A C Q U I R I N G A COURT: THE ST J O H N ' S ASSIZES

Commodore Rodney's final reform was to lobby for an end to the system of sending suspected felons, along with witnesses, to England for trial. This campaign for a local court to judge felonies accorded with his broader reform program but was spurred by having to deal with a homicide at Trinity. Captain Drake, who had been sent there on a surrogate cruise in August 1749, was unsure of how to proceed and wrote to Rodney for instructions. Rodney's response reveals that he was well aware of how difficult it was to bring a murder suspect to justice: he ordered the magistrates to send him all the relevant affidavits; if they thought the evidence sufficiently strong to secure a conviction, they were to imprison the suspect and submit a summary of the facts. He wanted to build as strong a case as possible in order to justify ordering potential witnesses to sail with the suspect to England, where the trial would eventually take place.49 In taking this course of action, Rodney was likely influenced by the local magistrates, in particular William Keen, who had long called for the British government to grant Newfoundland its own assize court. The normally acerbic Keen flattered Rodney as a governor 'who so well know[s] how to keep good order and Government amongst us.'50 From Woolwich, where HMS Rainbow had docked upon returning to England, Governor Rodney wrote to the Duke of Bedford to request that the power to try and punish capital crimes be given to Newfoundland. Stressing that he was acting at the behest of the island's principal

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inhabitants and traders, Rodney repeated the essential arguments made by Captain Lee in 1736. The practice of having to transport prisoners and witnesses to England was far too cumbersome and costly; potential witnesses were often unwilling to come forward; and, as a result, murders and robberies frequently went unpunished.51 As we have seen, complaints about the inadequacy of King William's Act had circulated in government circles since the early eighteenth century. When the civil magistracy was first established in the 1730s, the Board of Trade had recommended that a judge be sent to Newfoundland with a commission of oyer and terminer. What set Rodney's initiative apart from previous efforts was his political position: his patron, the powerful Duke of Bedford, was secretary of state. Bedford personally laid Rodney's letter before the Privy Council and successfully lobbied on its behalf. Early in 1750 he informed Dudley Ryder, the attorney general, that the king had provisionally approved the proposal to create some type of jurisdiction in Newfoundland to take cognizance of capital offences.52 As had happened during the failed bid for an assize court in 1738, the British government wanted a legal opinion on how to proceed without contravening King William's Act. The attorney general's report repeated the ruling given twelve years earlier. Ryder stated that King William's Act did not abrogate the royal prerogative to erect and constitute new courts of justice in Newfoundland. He also took the liberty to relate how the matter had been considered and then rejected by the Privy Council in 1738.53 The Duke of Bedford ordered that instructions be drafted - to be laid before the King in Council before the departure of the fishing fleet - authorizing Captain Francis William Drake, appointed governor for 1750-1, to establish a court of oyer and terminer for the trial of capital crimes in Newfoundland. Worried about the legality of this measure, the Board of Trade asked the attorney general whether this new power could be given by instructions only or whether it had to be inserted in the governor's commission under the great seal.54 Ryder argued that it had to be included in the commission, but the manner in which the governor exercised that power could be prescribed and limited by his instructions. Ryder suggested that the applicable clauses in the old instructions to Governor Vanbrugh could be simply inserted into those drafted for Governor Drake.55 The governor's instructions significantly limited the scope of the court of oyer and terminer.56 They were designed to check potential problems associated with the relative absence of legal experience and

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education in Newfoundland. The court could sit only once a year, during the governor's residence; convicted felons could not be executed without the prior approval of the British government; and to ensure that the cabinet had the necessary information to decide whether to grant a pardon, a transcript of the trials of reprieved offenders had to be compiled and sent to London?7 Lastly, the Newfoundland court was prohibited from hearing any case involving alleged acts of treason.58 The Duke of Bedford laid the instructions before the King in Council, where they were accepted without amendment; an order-incouncil promulgated the changes to the island's constitution in April 1750. Governor Drake accordingly received an amended list of instructions before setting sail with Commodore Rodney.59 Added to the usual heads of inquiry was a seventieth article, which required Drake to provide an account of the proceedings of the assize court. THE O P E R A T I O N OF THE ST J O H N ' S ASSIZES

In August 1750 Governor Drake made the necessary preparations for the first session of the court of oyer and terminer. He sent a memorandum to all the justices of the peace ordering them to erect public notices that the assizes would be held each year in September.60 All suspects and witnesses were to be brought to St John's, where the grand jury would convene to consider bills of indictment. On 25 September 1750 Drake issued the first commission of oyer and terminer to seven men, five of whom were justices of the peace (see Appendix 4.3). Two days later the court of oyer and terminer held its inaugural session at St John's, at which Lawrence Kneeves was tried for murder, convicted of manslaughter, and sentenced to be branded on the right hand.61 This first trial displayed many of the characteristics which became part of the customs of the Newfoundland assizes. For example, unlike most courts in England, during each trial the jurors withdrew to deliberate their verdict. Why this practice became an entrenched aspect of judicial procedure was never explained by the bench or the governor. Evidence suggests that such customs were in part by-products of the pressures of available legal resources. The explanation for jurors withdrawing is thus discernable when considered in light of the conditions inside the St John's courthouse. In 1786 the senior magistrates asked the governor to take steps to repair the building that served as the courthouse and gaol. Their petition explained,

Figure 4.1 The administration of law, 1750-91 The Crown (Secretary of State)

Governor (Commission by royal prerogative)

King William's Act

Fishing admirals

Naval officers (as appeal judges)

Justices of the Peace (Commission of the Peace)

Petty Sessions

Local customs

Commissioners of Oyer and Terminer (Commission of Oyer and Terminer) Assizes

Quarter Sessions

Naval officers (Surrogate's commission) Surrogate Courts, 1749-89 Governors (as judges) Governor's Court, 1749-81

Vice-admiralty, 1736-

The Establishment of Naval Government 121 The lower part of the building, which is allotted for the confinement of prisoners, consists only of two small apartments, and as persons committed for offences to be tried at the General Assizes are brought to this place from all parts of this Island, it frequently happens that offenders of different sexes are lodged in the same apartment; and persons committed for petty misdemeanors are confined in the same cell with those who have been convicted of crimes punishable with Death. The upper part of the building in which we hold our Courts is equally insufficient and equally destitute of every conveniency - both Grand and Petty juries when there is occasion for their attendance, are under the necessity of retiring to the Church, or to some dwelling house in the neighbourhood, there being no apartment in the Court house in which they can be accommodated.62

Although it is uncertain how many other aspects of the assizes were affected by the state of the courthouse, magistrates were clearly sensitive to the limited infrastructure upon which they could draw. Governor Drake followed his instructions to the letter. Two identical copies of the assize proceedings were made: one was inserted into the Colonial Secretary's Letterbook the day of the trial; the other was entered by Governor Drake into his returns to the heads of inquiry.63 In the other articles Drake asserted that the justices of the peace were invaluable to the rule of law in Newfoundland, to which the planters had duly submitted. But he warned of the grave danger posed by the large numbers of Irish Roman Catholics, the majority of whom were allegedly disloyal to the Crown and refused to take the oaths of allegiance.64 S E C U R I N G THE POWER TO HANG

OFFENDERS

Against this backdrop of threatened unrest, Governor Drake successfully petitioned that Newfoundland be given the power to execute felons without the prior approval of the British government. In December 1750 Drake wrote to the Board of Trade to explain his case for this additional reform. While stressing the positive impact of the court of oyer and terminer, he argued that the restrictions on executing felons severely hindered its potential effectiveness. The problem was twofold: the lack of a sufficiently strong prison at St John's meant that reprieved offenders (who would have to wait at least nine months for the British government's decision whether to grant a pardon) could escape or be

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rescued after the naval squadron departed in the autumn; second, given the harshness of the Newfoundland winter and the poor condition of the prison facilities, the offenders who remained incarcerated were liable to perish from exposure or hunger before the governor returned in the summer.65 When a committee of the Board of Trade met in 1751 to draft the governor's instructions for the upcoming fishing season, it resolved to pass Drake's proposal on to the attorney general.66 The attorney general acceded to Governor Drake's request but recommended that the Newfoundland assizes be prohibited from hearing cases involving treason or prosecutions against officers of warships or merchant vessels.67 Laid before the Privy Council in June 1751, the proposal and the attorney general's recommendation were accepted without amendment. Signalling a significant shift in policy, the orderin-council directed that the second article of the governor's instructions - which required the governor to transport all felons to England for trial, in accordance with King William's Act - be finally revoked. The governor was now empowered to proceed straightaway with the execution of offenders sentenced to death at the St John's assizes.68 This reform did not alter the island's status as a seasonal fishing station. The Privy Council directed Governor Drake to enforce the statutory regulations for the fishery. No move was made to amend King William's Act - which still stipulated that felons be tried only in England - or to introduce legislation in Parliament. The commission of oyer and terminer appeared, therefore, to contradict King William's Act.69 In 1775-6 doubts over the legality of the Newfoundland assizes arose in the minds of some prospective jurors, who refused to serve on the grounds that the assizes had never been properly established.70 But according to Governor Mark Milbanke, such protests were the exception, for the vast majority of men agreed to do their duty as jurors when called upon each autumn.71 THE V E X E D Q U E S T I O N : WHAT LAWS W E R E E N F O R C E D ?

Delineating the reception of English law breaks down into the law of master and servant, along with property law, on the one hand, and criminal law on the other. In the former case, the reception of law was relatively clear. Prior to 1775, the law of master and servant derived from English law, local customs (e.g., the law of wages and lien, which had been promulgated as early as 1749), and the statutes respecting vagrancy and disorderly persons, which magistrates used as authority

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for ordering corporal punishment for unruly servants. In 1775 Palliser's Act conferred a statutory law of master and servant specifically designed for the Newfoundland fishery.72 The regulations governing master-servant disputes were the most explicitly established aspect of the island's pre-1792 legal regime. Given the fishery's reliance on wage labour - and the concern repeatedly expressed by merchants over the need to control servants - this is hardly surprising. The Newfoundland law of real property was a variant of English law. As Alexander McEwen has pointed out, although the formal law of real property in Newfoundland was unclear for much of the eighteenth century, local case law operated largely within the parameters of English jurisprudence.73 Similarly, Trudi Johnson has argued that English property law was applied as far as local circumstances permitted. Local customs complemented rather than inhibited the reception of English law, and property rights in Newfoundland were generally recognized and upheld. From the mid-eighteenth century, local courts enforced the rights of men and women to inherit both real and personal property in Newfoundland.74 And as we have seen, even the fishing admirals displayed care in their extant rulings concerning the ownership and possession of real property. In 1793 Chief Justice Reeves argued persuasively that three types of title governed the island's law of property: grant, occupancy, and statutory prerogative. Reeves asserted that grants were issued by the governor or a surrogate. He explained, These were made sometimes generally; sometimes to the grantee for life; and sometimes to him and his heirs; they have of late years been considered as nothing more than grants during pleasure, or at the most, during the time the place granted was used for the fishery; and grants of late have been commonly expressed to be during the King's pleasure, and for the use of the fishery .... The grants, whether ancient or modern, contain no reservation of rent or any acknowledgment or consideration whatsoever; namely where a piece of land has been granted in consideration of another that had been taken from the grantee for building forts, or some other public service; there are several such grants, and they are considered as the best titles in the Island, on account of this consideration being expressed in them.'

The second form of property holding, occupancy, conformed entirely to English law. According to Reeves, three-quarters of the land held in

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Newfoundland was by simple occupancy, with no written grant whatsoever.76 The third type of title derived from the statutes governing the fishery. Both King William's Act (1699) and Palliser's Act (1775) regulated the possession of real property. The fundamental principle was that rights were contingent upon use: title to land lapsed when property ceased to be held in support of a fishing operation. King William's Act stated that all waterfront properties and buildings acquired for the local fishery since 1685 had to be relinquished for public use as fishing rooms for the migratory fishery. Palliser's Act reiterated the right of masters of fishing ships to avail themselves of any ships room not already occupied by another crew for curing and drying fish.77 Statute law reflected imperial policy: in theory, Newfoundland constituted merely a fishing station where property was devoted solely to the prosecution of the English migratory fishing.78 In practice, local courts invariably dealt with a wide array of property cases. Archibald Buchanan captured the essential point: 'The property in land, thus established, may be conveyed to heirs, may be devised by will, may be disposed of by sale, may be let to tenants, may be adjudged to creditors in payment of debt - but it must, in all cases be employed, as the Act directs, in the business of the fishery/79 The stipulation that real property must be held in conjunction with the fishery - and must not interfere with fishing operations - was neither completely nor consistently upheld. Governors never uniformly enforced the statutory restrictions to the letter of the law. While administrative initiative was sporadic for most of the eighteenth century, in 1779 Governor Richard Edwards made a concerted effort to tighten the regulation of real property. Edwards directed the civil magistrates to make a complete report of the houses in St John's and to ensure that no new buildings were constructed without his permission.80 He then ordered the high sheriff and the justices of the peace to arrange for the demolition of several houses deemed a nuisance to the migratory fishery.81 Of the three separate orders to pull down houses recorded in 1779, one dealt with a disorderly house that was deemed to be a public nuisance rather than a hindrance to the migratory fishery.82 Seven years later, in another wave of administrative activism, Governor John Elliot published a proclamation forbidding new buildings to be erected below the Upper Path (what is now Duckworth Street), without written authorization; houses built in violation of this edict were to be torn down.83 In 1787 Governor Elliot ordered the high sheriff to inspect buildings before allowing any reno-

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vations to proceed.84 At least one premises deemed to be a nuisance to the fishery was pulled down in 1789; the following year a house in St John's was dismantled, and one resident was ordered to remove a chimney from a building which had been not been authorized for residential use.85 Patrick O'Flaherty has argued that the regulation of housing in St John's reflected a broader lack of legal rights in Newfoundland. 'No right to private property/ he asserts, 'was legally established until 1819.'86 Yet the actual enforcement of the restrictions on the ownership of private property never conformed entirely to statute law, nor did it encompass personal property. The scope of the seemingly draconian destruction of private homes can also easily be exaggerated.87 It is unlikely that more than twenty houses were ever destroyed by order of the governor: most residents of St John's enjoyed their property in peace, regardless of its connection to the fishery. Those living in the outports faced even less regulation, leaving the common law pre-eminent. As McEwen argues: 'the fact that governors continued to issue grants to private persons, in the belief of their authority to do so, meant that houses and land were bought and sold with the same confidence of title as in England.'88 McEwen overstates his case somewhat - as O'Flaherty points out, the right to own real property was not formally recognized until the nineteenth century - but he astutely emphasizes the perception of property law.89 The authority of local courts to adjudicate the ownership of real property may have been tenuous in statute law, but it appears to have been accepted by the vast majority of parties in civil cases throughout the island's districts. In effect, settlers enjoyed the right of possession vaut litre except in special cases where the courts found a property to be a direct nuisance to the fishery. As we shall see, it would take an appeal in England to undermine the authority of the Newfoundland judiciary to hear property cases.90 Evidence suggests that the island's criminal law closely followed English jurisprudence. There were four basic sources of local law: King William's Act; the governor's commission; the instructions authorizing the governor to constitute a court of oyer and terminer; and the commission of the peace.91 As we have seen, King William's Act specified no punishments for transgressing its provisions. The governor's instructions and commission provided some basic regulations - e.g., no officer of a trading ship could be executed on the orders of the island's assize court - but contained little substantive law. And the commission of the peace actually conferred less authority than that given to English mag-

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istrates, since the Newfoundland justices had to work within the confines of the 1699 Act. The assize bench was left, therefore, to follow whatever laws they deemed compatible with their commission of oyer and terminer, which stipulated only that they follow 'Law and Justice.'92 This presumably referred to English law, and trial proceedings indicate that the judges were indeed following English practices. But to what degree magistrates felt bound by statutory law is entirely unknown. For example, no reference was ever made at the Newfoundland assizes to benefit of clergy - no trial transcript records its invocation - but a number of offenders were branded for offences, such as manslaughter, in a manner indicating that they had been granted clergy (benefit of clergy was a privilege of exemption under English law from the punishment of death for certain criminal offences, given to those who could read). Taken together, the evidence indicates that English criminal law, in toto, was the law enforced throughout Newfoundland's courts. Overshadowing the reception of law was the fact that Newfoundland had no legislature in which to pass bills or to debate policy. Without an elected assembly or even a town corporation, the process of making local law fell to the governor and the judiciary. Measures that worked and caused the fewest problems were adopted; the task of reshaping English law through colonial legislation, a salient feature of politics in most British colonies, did not apply to Newfoundland until after 1832.93 The question of reception is interesting, then, not because it was contested, but because it received virtually no public comment prior to the nineteenth century. Without an independent press to monitor the judiciary, the island's courts interpreted the varying sources of law according to perceived imperatives. Wherever possible, governors and naval officers applied customary law. In August 1751, for example, Commodore Rodney ordered Captain Knight, commander of the sloop Saltash, on a surrogate cruise, to settle a complaint against a justice of the peace for unlawfully ordering the seizure of a planter's fish catch as security for a debt. Rodney's instructions effectively summarized the law of wages and lien that was central to the fishery: 'As the justices of the peace are not upon any account to concern themselves in causes relating to the fishery, which by the Act of Parliament are to be under the cognizance of the Fishing Admirals, with an appeal to the captains of His Majesty's Ships who are finally to determine the same, I must therefore desire you will take the complainants under your protection, and if you find their case as represented, don't doubt but you will do them ample justice in causing their effects to be

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restored, as the servant's debts according to equity and the custom of the country are to be first paid, and likewise reprimand the justice of the peace for presuming to act out of his sphere/94 Such involvement in local government extended to setting the annual price of codfish and the rates of servants' wages. In September 1751 George Garland, the justice of the peace for Harbour Grace, petitioned Commodore Rodney on behalf of local merchants for permission to lower wages because of the season's poor fish catch. As a civil magistrate in Newfoundland, Garland was prohibited from such action, but Rodney's own jurisdiction did not permit him legally to hear petitions other than appeals against the fishing admirals. Still, Rodney gave his judgment without hesitation: 'I can by no means approve of it, as both equity and law declare the labourer to be worthy his hire.' He then asked, rhetorically, 'had the season been good in proportion as it has proved bad, would the merchants or boatkeepers have raised the men's wages?'95 This statement was not a manifestation of anti-merchant bias so much as it was a reflection of Rodney's conception of the commodore's responsibility to act as the de facto chief justice of Newfoundland.96 For some civil magistrates, the laws in force in Newfoundland were no different from those in England. For example, Samuel Harris, a justice of the peace in Trinity, kept a meticulous record of petty and quarter sessions, and of all the warrants issued and proceedings held out of sessions in 1757-8.97 Harris and the other district magistrate petitioned the governor for permission to use local fines to build a gaol and requested that a sheriff be appointed for Trinity. The practice of impanelling juries without a sheriff, they warned gravely, was contrary to English law and 'seems to us not to be strictly legal.'98 Harris performed his duties as if he were in an English county. He issued detailed instructions to the constables on how properly to raise a hue and cry and to serve a capias (a writ requiring an officer of justice to take a person into custody).99 When he sat at quarter sessions, the trial jury practised pious perjury to convict a man of the misdemeanour of petty larceny rather than the felony of theft over a shilling.100 Harris was apparently entirely unaware that he could not legally hear any case outside of criminal offences and breaches of the peace. The list of thirty-nine warrants, recognizances, and orders issued out of sessions from October 1757 to September 1758 included an order to adjust a merchant's account, three orders to settle servants' wages, and a warrant of distress.101 Although Harris's careful attention to record-keeping was perhaps unusual, his excursions beyond the realm of criminal law were not. As we shall see, the custom

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of magistrates settling disputes in the fishery - in particular suits for wages and breach of contract - continued until 1775, when it was formally recognized in Palliser's Act. GOVERNMENT, TAXATION, AND LOCAL ASSEMBLIES

Throughout this period, the British government remained unwilling to grant Newfoundland any form of representative government beyond grand and petty juries. In place of such formal institutions as a town corporation, a number of local customs emerged to meet the needs of those in power. These dated back at least to 1711, when Captain Josias Crowe presided over a series of public meetings attended by merchants and the other prominent townspeople, which approved local bylaws.102 By the mid-eighteenth century, the practice of using ad hoc meetings of planters, merchants, and magistrates to approve local taxes and other initiatives had become well established. Governors encouraged magistrates to collect duties to fund construction of courthouses and gaols, or to defray costs arising from criminal trials, throughout the island's districts: Placentia (1757-^8), Harbour Grace (1765, 1771), St John's (1772-3), Bonavista (1774-5), Bay Bulls (1775), and Trinity (1758, 1777-S).103 Following the precedent set in the early 1730s, the grand jury played no known role in these proceedings. Raising taxes without the approval of an elected assembly appears to be prima facie taxation without representation - a practice widely condemned as unconstitutional - and a recent study portrays such levies as extraordinary and illegal measures.104 But this view distorts the legal context in which the island's government operated. The Colonial Tax Repeal Act of 1778 applied only to taxes levied by the king and Parliament of Great Britain, leaving colonial assemblies relatively free to impose local assessments.105 Whether an ad hoc committee constituted an equitable form of representative government is debatable, but it was certainly not without precedent. Taxes were raised locally in Placentia, for example, where magistrates routinely convened meetings during the annual sitting of the surrogate court. As the minutes of the Placentia court indicate, warrants for tax collection comprised a standard element of the naval surrogate's jurisdiction: 'Whereas upon the representation of the principal inhabitants that a tax is absolutely necessary for the repairing of the gaol, keeping up the railing of the church yards, the support of the poor, and other necessary services for the publick that may occur, [the court has] ordered a tax of two shillings to

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be levied on every boatkeeper, fisherman, and servant employed in the fishery in the district of Placentia, for the above services to be continued for one year only.'106 This informal system of local taxation did not produce any extant complaints or controversies among the propertied classes. Local government was operated by and for the propertied ranks of Newfoundland society. If their interests were seriously threatened, merchants would meet together to discuss how to respond. For instance, when the landing of a shipload of Irish convicts created a crisis in St John's in the summer of 1789, an assembly attended by prominent merchants debated what course of action to take. Merchants influenced but did not control such proceedings. In fact, the meeting held in July 1789 resembled an assize session more than anything else: the thirteen men who signed the petition included two commissioners of oyer and terminer, the high sheriff, and four grand jurors; three others had served on previous grand juries.107 Merchants and prominent planters had long been involved in judicial administration - as we have seen, they had temporarily established their own court in 1723 and met regularly with the governor to settle disputes over wages and prices, although they were notoriously reluctant to serve on juries during the summer fishery. Merchants rarely became actively involved in government unless their interests were threatened. Habitually fractious and often divided, they united when faced with a common threat, blurring the line between private rights and public justice.108 They presented petitions on an array of issues, from local taxation to the maintenance of coastal defences.109 With few exceptions, Newfoundland merchants considered themselves to be British, sharing a basic principle of contemporary political ideology: a commitment to securing the protection of property.110 This led some of them to resist formal efforts to impose regular local taxes. In 1772, for example, local merchants refused to pay the customs house fees at St. John's. The governor warned that those who did not pay the fees would 'answer the contrary at their peril/ but no one was ever prosecuted or publicly admonished.111 Until the 1820s such acts of political independence did not seriously challenge the authority of naval government. Merchants were in fact seen as the principal source for funding public works. In 1791, for instance, Governor Milbanke rebuked the justice of the peace in Trepassey for using the district's funds to pay for maintaining the local fort, pointing out that the fish merchants should pay for any necessary repairs.112 How-

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ever, when the British government moved to impose new import duties on Newfoundland in 1827-8, merchants mobilized politically in a manner never seen before. They organized petitions, joined a coalition battling for political reform, and campaigned for a colonial legislature. They also engaged in protest actions, refusing to allow their ships to carry the mail because it might contain orders relating to the tax. Their participation in the reform campaign transformed local politics and eventually precipitated the grant of representative government in 1832.113 .

THE F I S H I N G A D M I R A L S U N D E R NAVAL RULE

Although the fishing admirals had sharply contested the authority of the governor and magistrates in the early 1730s, by 1750 they were no longer an independent force. In the second half of the eighteenth century the fishing admirals were brought firmly under the control of the island's naval government, although they still figured prominently in contemporary accounts of Newfoundland. William Douglass's survey of the North American colonies, published in London in 1755, offered a purportedly up-to-date assessment of the island's government: 'Differences amongst the fishermen of the several harbours, are at first instance determined by the admirals so called, being the first ship masters who arrive for the season in the respective harbours; from this judgment, appeal lies to the commodore of the king's stationed ships, who determines in equity. Felonies in Newfoundland are not triable there, but in any county of Great Britain.'114 While Douglass was well aware of the annual appointment of naval governors, he portrayed the fishing admirals as powerful local figures: 'At present the commodore of the king's ships stationed for the protection of the fishery of Newfoundland, is governor of Newfoundland, during his continuance there, by the title of governor and commodore in chief of Newfoundland, and of the forts and garrisons there; there are also lieutenant governors of the forts and garrisons there .... As we hinted, the master of the vessel who first arrives in the several harbours, is called, admiral of that harbour, and acts as a magistrate and is called lord of the harbour.'115 When Joseph Banks visited Newfoundland a decade later, he too described the office of fishing admiral as a type of magistrate. Banks noted that 'in every harbour the first arriving ship is admiral of the harbour her captain administering justice tho' with frequent appeals to the Lieutenant Governor.'116 He viewed the admirals as part

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of the larger system of naval government administered by Captain Hugh Palliser, who was governor from 1764 to 1768. Official imperial policy continued to view the position of admiral as an important institution. Article 40 of the heads of inquiry, required him to investigate 'whether the Admirals are careful, in order to preserve the peace and good government, both in their respective Harbours and on Shore, to see that the Rules and Orders contained in the aforesaid Act [King William's Act] be duly put in execution.'117 Governor Palliser's response, submitted to the Board of Trade in 1764, was remarkably similar to the scathing reports of the 1730s: 'The Admirals do not comply with any part of this Article, concerning themselves with nothing but what is for their own or employer's interest, as is beforementioned; and notwithstanding the repeated orders of every governor, they pay no regard thereto; they are under no obligation to do it; there is no law, nor authority to compel them to it, no penalty for neglecting it, no benefit accrues from their doing it, and few or no ship privileges left to preserve; and the Admirals, who are for the most part illiterate men, incapable of keeping the account required by the Act [King William's Act]; are always under the influence and direction of particular people, who are commonly encroachers or monopolisers.'118 Palliser added that the admirals were 'totally negligent of everything required of them by the Act; either through incapacity or bias to their own or employer's particular interest; neither is any regard ever paid to them, they themselves paying none to the Governor's orders to them.'119 For Palliser, the admirals' incompetence represented an obstacle to the proper enforcement of King William's Act, which he was trying to re-establish as the dominant source of local law.120 Palliser's comments on the admirals' ineptitude are reflected in the pamphlets written in this period. Judging from the two pamphlets on Newfoundland published in the 1760s, the fishing admirals were not seen by everyone as essential to the island's government: both Griffith Williams's Account of the Island of Newfoundland and the anonymous True Interest of Great-Britain completely ignored the admirals and focused instead on the Royal Navy.121 Dr Gardner's unpublished essay on Newfoundland in 1784 reduced the familiar description of how the fishing admirals system worked, but he noted that 'this custom can be of no farther use now.'122 The only vestige of the system left functioning, according to Gardner, was the admirals' habit of extorting thirty to forty pounds for the use of ships' rooms. On the role of the admirals in allocating rooms, he contended, 'Whatever advantages this practice

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might have been to the fisheries in their infancy, most certainly it is a great discouragement to them at present, as it makes property precarious. This inconvenience may be easily remedied by the Governor's appointing three men in every harbour to regular this matter, and see that no man is injured in his property; nor engross more fishing room than he can occupy.'123 In an authoritative treatise prepared in 1786, Archibald Buchanan asserted that in theory the fishing admirals still had jurisdiction over disputes regarding landed property. Buchanan claimed that the admirals' authority had lapsed because they had long neglected to exercise their legal powers, leaving the governor and his junior officers to fill the void.124 The position of fishing admiral went through three main phases of development. As we have seen, from 1699 to the establishment of a governorship and magistracy in 1729, we know relatively little about the admirals other than the repeated complaints of their indolence which appear in colonial correspondence. King William's Act appears to have been problematic from its inception, prompting efforts to augment the admirals' jurisdiction with some type of local magistracy. The second phase, which ran from 1729 to the mid-1730s, was marked by a struggle for authority in Newfoundland. As had happened a generation earlier, the Royal Navy moved to fill the void created by the lack of effective government. Naval governors expanded their authority and successfully quelled the admirals' campaign to supplant the civil magistracy, but this did not produce any new legislation and King William's Act remained in force. As the legal controversies subsided in the mid-1730s, the issue of reforming the island's judicial system sank into political obscurity. By the 1740s London was content to maintain the status quo, clearing the way for the ascendancy of naval government. The final phase in the history of the fishing admirals began with Governor Rodney's reforms in 1749 and continued to the repeal of King William's Act in 1824. This was the period when the Royal Navy dominated Newfoundland: the fishing admirals were no longer an independent force, and they never again mounted a serious challenge to the legal system. CONCLUSION The revolution in government that occurred in the mid-eighteenth century presents an apparent paradox. On the one hand, in the aftermath of Commodore Rodney's reforms, the island's judicial administration

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was placed on a far more structured footing than ever before. Newfoundland now had three local courts, each of which was based on authority conferred via written commission. It also had, for the first time, a local repository for legal records that provided the means to register judicial actions and to preserve a wide range of documents. Using the Letterbook system, the governor was able to increase his level of communication with, and supervision of, outport justices. By 1750 he could send naval magistrates on surrogate cruises in schooners small enough to get into most outports and to navigate safely along the coast. Bringing the majesty of English law to the outports stretched along the numerous bays, officers convened courts that settled all outstanding disputes. Yet, on the other hand, this process of formalizing and expanding legal power was based largely on customary authority. The surrogate courts - the workhorse of the island's judiciary for the next seventy-five years - had no basis in written law other than the appellate jurisdiction granted by King William's Act. Rodney's reforms actually contravened several tenets of official imperial policy and statutory law, such as the fishing admirals' primary role in settling fishing disputes. Neither statute nor prerogative writ supported the creation of the governor's court, though it soon became an accepted institution. The invention of the Letterbook was entirely Governor Rodney's own initiative, regulated by no known laws or ordinances. And the assemblies attended by magistrates, merchants, and other prominent townspeople were merely ad hoc measures taken to meet specific local needs. The solution to this puzzle lies in the malleable nature of common law and local custom. Whereas customary authority afforded governors relative freedom to take the steps they deemed necessary at the same time as conferring legitimacy, the common law provided the basis of jurisprudence at every level. A distinct legal culture grew out of the interplay between custom and common law, meshing civil and naval authority into a single administrative regime. This development was due fundamentally to the presence of the Royal Navy: the warships that arrived each summer provided the material and cultural resources on which the edifice of law was built. The naval government that emerged after 1749 bore little resemblance to the image of quarterdeck justice because it operated within the basic framework of the common law. For those who saw the warships moored in harbour each summer and heard the naval officers render judgments in court, naval rule was the central feature of the island's legal culture.

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APPENDIX 4.1 GOVERNOR'S INSTRUCTIONS, 1733-51 What follows is an extract of the article in the governor's instructions authorizing him to constitute a court of oyer and terminer in Newfoundland. Drafted in 1738, it was deleted by the Privy Council, inserted as the seventieth article in the instructions given to Governor Drake in 1750, and revised in 1751. Whereas we have thought fit by our commission to you for the Government of our said Island of Newfoundland, to give and grant unto you full power and authority to constitute and appoint judges and in cases requisite Commissioners of Oyer and Terminer, [Here, for the 1750 instructions, the Attorney General inserted 'for the hearing and determining all criminal causes, treason excepted'] Justices of the Peace and other officers and ministers for the administration of justice, with power also to pardon offenders and to remit all offences, fines and forfeitures wilful murder only excepted, in which case, you have likewise power on extraordinary occasions to grant reprieves. It is our express will and pleasure that you do not appoint any such Commissioners of Oyer and Terminer to meet or hold Assizes more than once a year and that only during the time you or the Governor of the Island for the time being shall be resident there and that you do not suffer any criminal to be deprived of life or limb by any sentence of such Court, but in all cases you shall reprieve the criminal until our pleasure be known therein. [Here, for the 1751 instructions, the Privy Council replaced the italicized passage with: 'And it is our express will and pleasure that you do not suffer any of the officers of our ships of war or of any of the trading ships of our subjects which shall happen to be there to be there to be deprived of life or limb by any sentence of such Court but in such case you shall reprieve the criminal until our pleasure be known thereon. And you shall take especial care, that all persons guilty of treason be sent over to this our Kingdom with witnesses and sufficient proof of the crime along with them/] And it is also our express will and pleasure that you do with your answer to the foregoing enquiries return also a full account of what you shall have done in pursuance of this power of appointing Judges, what proceedings have been had before the said Judges, what obstructions or difference you or they have met with (if any) in putting the said powers in execution,

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and which way you conceive we may contribute to render it more useful and beneficial to all our subjects residing in Newfoundland or resorting thereto. And particularly that you do by the first opportunity send unto us by one of our principal Secretaries of State and to our Commissioners for Trade and Plantations a Report of all the proceedings in cases where any person is sentenced to the loss of life or limb, in order that the same may be laid before us in council for our pleasure thereon. Sources: PRO, CO 194/21, 7-12 (original instructions drafted in 1738); vol. 12, 15-16 (report of attorney general in 1750); vol. 12,175 (amendments proposed by the attorney general in 1750); vol. 21,17-18 (amendments proposed by the attorney general in 1751); vol. 13,1-2 (copy of Privy Council minutes in 1751); and PRO, PC 2/102, 241-3 (order-in-council, 4 June 1751).

APPENDIX 4.2 THE GOVERNOR'S COMMISSION The governor's commission was normally granted to the officer appointed to serve as commodore of the Newfoundland station. Upon the approval of the Privy Council, he received the title of governor, and usually served a threeyear term concurrently with his Admiralty commission as commodore. Issued only once, the governor's commission was promulgated when the squadron first arrived in St. John's harbour and again by his junior officers when they convened a surrogate court in an outport. George the Second by the Grace of God of Great Britain, France and Ireland King, Defender of the Faith and so forth, To our trusty and well beloved, Francis William Drake Esquire, Greeting.

Whereas We did by our Letters Patents under our Great Seal of Great Britain bearing date at Westminster the twenty sixth day of January in the twenty third year of Our Reign constitute and appoint you the said Francis William Drake to be our Governor and Commander in Chief in and over the Island of Newfoundland in America our fort and garrison at Placentia and all other forts and garrisons erected and to be erected in that Island for and during our will and pleasure as by the same letters patent relation being thereunto had may more fully and at large

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appear. Now know you, that we have revoked, determined and made void the said recited Letters patent and every clause, article and thing therein contained and we reposing especial trust and confidence in the prudence, courage and loyalty of you the said Francis William Drake of our especial Grace certain knowledge and meer motion have thought fit to constitute and appoint and by these presents do constitute and appoint you the said Francis William Drake to be our Governor and Commander in Chief in and over our said Island of Newfoundland , our fort and garrison at Placentia and all other forts and garrisons erected or to be erected in that Island. And We do hereby require and command you to do and execute all things in due manner that shall belong to your said command and the trust We have reposed in you according to the several powers and directions granted or appointed you by this present commission and the instructions either herewith given to you or by such further powers instructions or authorities as shall at any time hereafter be granted or appointed you under our signet or sign manual or by our Order in our Privy Council. And we do further give and grant unto you the said Francis William Drake full power and authority from time to time and at all times hereafter by yourself or by any other to be authorized by you in that behalf to administer and give the oaths mentioned in an Act passed in the first year of our late Royal father's reign, entitled An Act for the further security of His Majesty's person and government and the succession of the Crown in the heirs of the late Princess Sophia being Protestants and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abettors, to all and every such person and persons as you shall think fit who shall at any time or times, pass into our Island or shall be resident or abiding there. And we do by these presents give and grant unto you full power and authority to constitute and appoint Judges and in cases requisite Commissioners of Oyer and Terminer for the hearing and determining of all criminal causes treason excepted according to Law and for awarding execution thereupon with all reasonable and necessary powers, authorities, fees and privileges belonging thereunto, Justices of the Peace with other necessary officers and ministers for the better administration of justice and keeping the peace and quiet of the said Island which Justices of the Peace so authorized may and shall hold and keep General Quarter Sessions of the peace in such places as you shall appoint according to the Custom of this part of Great Britain called England and to adjourn such Session from time to time and form place to place as shall be most convenient and necessary

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for the peace and welfare of our subjects inhabiting there. Provided neither you nor they do anything by virtue of this Commission or the powers hereby Granted contrary or repugnant to the Act for Encouraging the Trade to Newfoundland passed in the tenth and eleventh years of the reign of King William the Third [King William's Act] nor any way obstruct the powers thereby given and granted to the Admirals of Harbours or Captains of our Ships of War or any other matter or thing either prescribed by the said Act or by such instructions as you shall received from us as aforesaid. And we do hereby give and grant unto you full power and authority where you shall see cause or shall judge any offender or offenders in criminal matters of for any fines or forfeitures due unto us fit objects of our mercy to pardon all such offenders and to remit all such offences fines and forfeitures, wilful murder only excepted in which case you shall likewise have power upon extraordinary occasions to grant reprieves to the offenders until and to the intent our Royal pleasure may be known therein. And provided also that no person or persons so by you appointed to be justices of the peace as aforesaid or other officers or ministers belonging or appertaining to them do presume or be suffered to act in such office or place until he or they have taken the aforesaid oaths mentioned in the said Act for the Further Security of His Majesty's Person and Government and the Succession of the Crown in the Heirs of the late Princess Sophia being Protestants, and for Extinguishing the hopes of the Pretended Prince of Wales and his Open and Secret Abettors as also made and subscribed the Declaration mentioned in an Act of Parliament made in the twenty fifth year of the Reign of King Charles the Second Entitled An Act for Preventing dangers which happen from Popish Recusants, and also take such proper oath or oaths as are usually taken in this Kingdom by persons executing such offices and trusts, which said oaths and Declaration you shall administer and give, or cause the same to be administered and given to all and every person and persons who ought to take the same according to the Laws and Customs of this Kingdom. And we do hereby give and grant unto you the said Francis William Drake full power to erect, appoint and set apart one or more convenient court house or court houses for the more orderly meeting of such justices of the peace in order to hold such their Quarter or other Sessions, with a convenient prison adjoining thereto for the keeping of such offenders as may be found necessary to be committed to safe custody, until all such Court or Sessions can more conveniently be held for trying and delivering offenders against our Laws and the Peace of our subjects.

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And we do hereby require and command all officers civil and military and all other inhabitants of our said Island to be obedient, aiding, and assisting unto you in the execution of this our Commission and of the powers and authoritys herein contained. And in case of your death our will and pleasure is that the person upon whom the command of our ships under your command shall devolve do take upon him the administration of the Government of our said Island, and execute our said Commission and Instructions, and the several powers and authoritys therein contained in the same manner to all intents and purposes as you our said Governor and Commander in Chief might or ought to do for and during our will and pleasure. And we do hereby declare, ordain and appoint that you the said Francis William Drake shall and may hold, execute and enjoy the place of our Governor and Commander in Chief in and over our said Island of Newfoundland with all and singular the powers and authoritys hereby granted unto you for and during our will and pleasure. In witness thereof we have caused these our letters to be made patent, witnesses Thomas Archbishop of Canterbury and other Guardians and Justices of the Kingdom at Westminster, the twenty third day of April in the twenty third year of our Reign. York & York By Writ of Privy Seal Source: PANL, GN 2/1/A, vol. 1, 83-90. Spelling and punctuation have been modified.

APPENDIX 4.3 THE C O M M I S S I O N OF OYER AND T E R M I N E R

The commission of oyer and terminer was issued annually by the governor and was to be used for a single assize session. The commissioners typically received their commission two weeks before the assizes were to begin.

By Francis William Drake Esquire Governor By virtue of His Majesty's Commission made Letters Patent bearing the date at Westminster the twenty third day of April in the twenty third year of His Majesty's reign whereby is given and granted until me full power and authority to constitute and appoint Judges, and in cases requisite, Commissioners of Oyer and Terminer for the hearing

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and determining all criminal causes (treason excepted) according to Law, and for awarding execution thereupon with all reasonable and necessary powers, authoritys, fees and privileges belonging thereunto. I therefore have appointed and authorized you Michael Gill, Nathaniel Brooks, John DeGrave, George Garland, John Benger, Charles Wally, and George Olive, Esquires Commissioners with full powers and authority to hear and determine all criminal causes (treason only excepted) according to Law and Justice and to proceed to sentence or acquittance as the case shall require. And I do further appoint you the said Michael Gill, Nathaniel Brooks, John DeGrave, George Garland, John Benger, Charles Wally, and George Olive, Esquires Commissioners or any five or more of you, of which number you Michael Gill, Nathaniel Brooks and John DeGraves shall be one, and that you do make your report to me of all such your proceedings had and done in the causes which shall be brought before you or any of your nominated, authoris'd and appointed as aforesaid. In Witness therefore I have hereunto affix'd my Hand and Seal at St. John's this twenty fifth day of Setember 1750 and in the twenty fourth year of the reign of His Majesty King George the Second. [signed] Francis William Drake By command of the Governor [signed] Wlm. Hall Source: PANL, GN 2 / 1 / A , vol. 1, 181.

APPENDIX 4.4 THE S U R R O G A T E ' S C O M M I S S I O N The governor issued the surrogate's commission every spring or early summer to the individual naval officers or midshipmen appointed to serve as surrogates during the upcoming fishing season. In practice, the commission lapsed as soon as the surrogates returned to the commodore's flagship and the squadron left Newfoundland in the autumn.

By virtue of the power and authority to me given I do hereby constitute and appoint you James Wallace esq. to be my Deputy or Surrogate with full power and authority to assemble Courts within all that District situated on the coast of Newfoundland from Cape Race to Point

140 The Rule of the Admirals

La Hume to enquire into all such complaints as may be brought before you (except such as are excepted in the instructions annexed) and to hear and determine the same to all intents and purposes as I myself might or could by virtue of the power and authority vested in me; you have likewise power and authority to seize and detain in order to proceed to condemnation all uncustomed prohibited or run goods that may be found within the aforesaid limits or ports adjacent; and I do give and grant unto you James Wallace, full power and authority to administer the several oaths to any person or persons you shall think fit, agreeable to the several Acts of Parliament made in that behalf; I do strictly enjoin all Admirals of harbours all Justices of the Peace, all officers civil and military and all others his Majesty's Leige subjects to be aiding and assisting to you the said James Wallace and to obey and put into execution all such lawful orders as you shall give unto them, as I myself might or could do by virtue of the power and authority vested in me. Given under my hand and seal this 1st day of May 1772. M. Shuldham [Governor of Newfoundland]. Source: PANL, GN/5/4/C/1, PlacentiaDistrict Court (minutes for 1 May 1772).

5

A Fief of the Admiralty: Newfoundland under Naval Rule

In May 1830 George Robinson, the Tory MP for Worcester, rose in the House of Commons to speak on the state of Newfoundland. A partner in a Newfoundland merchant firm, Robinson was the chief parliamentary spokesman for the reform coalition that had recently emerged in St John's. After a brief introduction, he focused on the question of the island's legal regime: It was one of the oldest colonies in our possession, and though of that importance which should entitle it to a well regulated and proper administration of its affairs, they had for a long period been conducted in a manner which was anything but calculated to promote the prosperity of that island. Newfoundland had been long regarded as a fief of the Admiralty, and a naval officer was from time to time sent there to administer its affairs. He was allowed to remain but a short time, and was recalled to make room for some other naval officer; and in consequence of this spec'.es of management, though no one of our colonial settlements possessed greater natural advantages than Newfoundland, yet there was not one that had made so little progress in population, in wealth, and he might add in civilization. 1

Robinson was invoking the spectre of naval government after it had ceased to dominate the political landscape of Newfoundland. He knew that naval officers had played a major role in the administration of jus-

142 The Rule of the Admirals

tice, but his remarks betrayed a lack of knowledge about how naval government had operated. Ironically, as reformers were using the island's legal history as a rhetorical device, the past was being forgotten. In the process, a system of governance that had survived for nearly a century became a political backdrop. While scholars have reappraised much of the reformers' legacy, the history of the Royal Navy in Newfoundland remains trapped in medieval metaphors. This chapter examines the evolution of naval government from the mid-eighteenth century to the end of the Napoleonic Wars. It explores state formation during the height of naval rule and uses case studies to assess the administration of law in both St John's and the outport districts. The island's institutions continued to develop according to the initiative of the governor and his junior officers, whose ability to become involved in the judiciary depended upon whether they were free from the demands of wartime service. Authority was never completely uncontested: the customary regime that emerged in the 1750s faced challenges which eventually precipitated a political crisis in 1789. New legislation was passed in 1791, but the basic mode of governance did not change significantly until the 1820s. Without a local legislature or a bourgeois public sphere, naval governors remained relatively free to act as they saw fit. Political representation continued to function via petitions and ad hoc committees struck by magistrates and merchants to deal with local problems. This era has been seen largely through the lens of imperial policy. Eighteenth-century Newfoundland was in theory no more than a great ship moored off the Grand Banks, a seasonal fishing station with the barest features of civil society.2 Naval government remains in the shadow of William Carson and Patrick Morris's accounts, both of which portrayed it as inherently weak and arbitrary.3 The colonial state is still viewed in terms of official policies that restricted formal institutions: local customs were, in other words, feeble substitutes for the real thing.4 The legal system that governed Newfoundland prior to the 1820s was remarkably stable and effective, however, and the gap that existed between imperial policy and local practice did not hinder the administration of justice. Naval and civil magistrates exercised authority and merchants became actively involved in government when their interests were threatened. Before the advent of an independent press in the nineteenth century, local officials and magistrates were not subjected to critical public evaluation. Under such a regime, official policy was alternatively upheld, ignored, or superseded, depending upon

Newfoundland under Naval Rule 143

local conditions. Naval government was essentially reactive, limited by available resources, and shaped by individual initiative. The case of eighteenth-century Newfoundland points to the need to reassess the problem of state formation. While Sean Cadigan has established a sophisticated model of economic development, the structure of naval government has received relatively little scholarly attention.5 Studies by Christopher English and Patrick O'Flaherty have examined important aspects of law and government, but they do not address the question of how naval rule actually operated in the eighteenth century.6 In light of the recent renaissance in Canadian research on the colonial state, the example of early Newfoundland demonstrates the need to broaden the analytical scope to include customary sources of law and government.7 The absence of modern forms of social control, such as professional policing or a centralized bureaucracy, did not compromise the ability of the naval government to enforce its authority. With the backing of merchants and the military, the governor and magistrates could administer law without having to answer to an independent press or an elected assembly. Judged by modern standards, the naval regime was certainly not a fair or just form of government, but it had its own rule of law, its own legitimacy in the eyes of the propertied classes, and its own methods for maintaining order. THE IMPACT OF WAR AND INVASION

As had happened in the period 1744-8, military operations in the 1750s placed serious strains on the naval infrastructure on which the island's government depended. When the Seven Years' War broke out officially in 1756, no governor was sent to Newfoundland, nor did any naval surrogate visit the outport districts. Unlike during the War of Jenkins' Ear, however, the colonial state did not collapse.8 With Rodney's reforms now entrenched at St John's, the island no longer endured sustained periods of administrative atrophy. Captain Richard Edwards, appointed governor in 1757, presided over the governor's court, sent orders to the outport magistrates, and commissioned a junior officer to convene surrogate courts. Governor Edwards ordered a local militia to be formed and took steps to establish authority in St Pierre, where a justice of the peace had been installed since 1753.9 Following the precedent established by Governor Lee in 1735, Edwards authorized taxes to be levied locally without a grand jury presentment.10 He also instituted a binding subscription for the construction of a new Anglican church at St John's.11

144 The Rule of the Admirals

Against this apparent strength of the central administration must be balanced the limited naval resources available during wartime service. From 1757 to 1759 only one officer - Lieutenant John Chapman of HMS Gosport - was sent on the annual surrogate cruises. Lieutenant Chapman had the demanding task of having to sail south to Placentia and then north to Trinity Bay, holding courts with the local justices throughout August and September. He did not have the benefit of a sloop or other vessel small enough to navigate shallow harbours and uncharted coasts safely until August 1759, when Governor Edwards gave him command of the schooner Surprize. Remarkably, Chapman managed to convene courts in three districts - Placentia, Trinity, and Ferryland - and entered his proceedings into the colonial secretary's Letterbook.12 Governor Edwards's successor, Captain James Webb, appointed a surrogate in 1760 but no formal courts were held. Governor Webb convened the governor's court at St John's during his first year, but he died in May 1761 aboard his flagship shortly before he was to return with the squadron. In his place the British government appointed Captain Thomas Graves. Graves probably did not receive a full briefing by the Board of Trade and, not surprisingly, he neither reconvened the governor's court nor commissioned an officer to hold surrogate courts in 1761. The following summer he faced a different obstacle: the French captured St John's in June 1762. Intercepted off the Grand Banks by an English sloop and informed of the invasion, Graves proceeded to Placentia to await reinforcements from Halifax. In September an expeditionary force under General Amherst recaptured St John's, and the French squadron retreated under cover of fog.13 Despite the disruption caused by the invasion, the naval government wasted little time in reasserting its authority. Governor Graves relied on the surrogate courts to re-establish law and order. In Placentia, where the French had not attacked, Captain William Brown convened a court, though he was unable to visit the northeast coast until October.14 During the summer of 1762 the French had captured several outports and destroyed considerable property in Harbour Grace, Carbonear, and Trinity, where they burned numerous wharves, stages, and boats. When a French naval squadron secured the surrender of Trinity harbour, the commander summoned the justices of the peace and ordered them to requisition local supplies for the occupying force. This created a controversy when Benjamin Lester - a prominent merchant who served as one of the justices of the peace - negotiated a deal

Newfoundland under Naval Rule 145

whereby most of his property was spared. After the French had left, several planters accused Lester of colluding with the enemy and taking their cattle to supply the French. In response to these allegations, Governor Graves suspended Lester's commission and sent Captain Brown to hold a surrogate court to look into the entire affair.15 When the king's schooner arrived in Trinity harbour, Lester went aboard to meet with Captain Brown. Lester's private diary provides the only extant account: 'well received considering the number of complaints against me; he intends to hold a court tomorrow eight o'clock.' Samuel Harris, a surgeon who served as the senior magistrate in the district (Lester referred to him as 'the Doctor'), visited Captain Brown later in the afternoon and was told that the governor 'was very angry with me.'16 Brown made it clear he would not come ashore to Lester's house until the matter was settled. The next day two planters presented their complaints in court against Lester, who offered to compensate them from his own herd of cattle. Captain Brown successfully arbitrated the dispute, and he dined with Lester that evening. Petitions by servants for their wages comprised the bulk of the court's business over the next two days.17 On 11 October, Lester noted, two servants were corporally punished, but no record of their trial exists - if one had been held - and they were probably whipped for looting during the French occupation.18 The punishment was apparently carried out on the authority of Harris and John Garret Blake, the other justice of the peace. After the whippings, Benjamin Lester again entertained Captain Brown at his home. Lester recorded that Brown was annoyed with the local justices for sending one of the whipped men to the king's schooner without his permission.19 Brown set sail the next morning, joined by Lester in his own sloop, and the two vessels made a smooth passage across the mouth of Trinity Bay. The ships took the well-known course inside of Baccalieu Island, doubled Cape St Francis, and anchored in St John's harbour after less than forty-eight hours at sea. Lester promptly waited on Governor Graves aboard his flagship, the fifty-four-gun HMS Antelope, where he was 'tolerably well received.'20 At the governor's court, Lester settled a servant's petition for wages and sailed back to Trinity with his reputation officially restored.21 MAGISTRATES, MERCHANTS, AND SURGEONS

The events of 1762 illustrate three key aspects of the administration of law. First, the minutes of the district courts are neither a complete nor

146 The Rule of the Admirals

an unbiased index of judicial business. As in England, magistrates did not record all instances of summary punishments of vagrants and disorderly servants.22 This trend of under-reporting extended to disputes among planters and merchants, such as the complaints against Benjamin Lester. No official records exist of the controversy surrounding Lester's actions: we are left only with his version of what happened. Reliance solely upon the district minute books therefore produces a skewed picture of social harmony and deference. Law was not, as Christopher English claims, automatically deferred to by all levels of the community.23 Magistrates were normally able to enforce their authority with the backing of the Royal Navy, but this did not mean that serious controversies did not occur, or that surrogates did not get dragged into parochial disputes among planters and merchants. Power was continually tested, resisted, and negotiated by all ranks of local society. The island's fishing communities were no more deferential than other maritime settlements that relied upon wage labour.24 Equally important, the incidents at St John's and Trinity demonstrate how the authority of the governor and his officers operated on two interrelated levels. From his flagship in St John's harbour, the commodore wielded broad powers as governor and de facto chief justice. Naval surrogates carried this authority to the outports, where they demanded and usually received acquiescence from merchants and local magistrates. Captain Brown exercised discretion - his surrogate court kept selective minutes - and he socialized ashore only when he saw fit. Benjamin Lester might intimidate planters and cajole justices of the peace, but he dared not directly confront an officer in the Royal Navy. In effect, the surrogacy created in the outports a layer of authority separate from, though not necessarily adverse to, the fish merchants and the civil magistracy. The situation in Newfoundland was not comparable to the experience of the Royal Navy in colonial America, where it had difficulty imposing its authority after 1765. The problems encountered by naval officers sent to enforce trade and revenue acts in the Thirteen Colonies were the result of an exceptional political crisis, not a reflection of the inherent weakness of naval authority. The navy may well have inspired little awe in American courts and customs houses from 1765 to 1775, but neither did any other agency of British rule. In societies marked by revolutionary fervour - where British sovereignty was challenged by colonial elites - the navy's problem was not its inability to administer law but rather its incapacity to quell political unrest among British subjects.25

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Lastly, merchants influenced but did not control local government. Justices of the peace were mainly drawn not from the ranks of merchants and planters, but from the numerous surgeons who worked in the outports. Lester invariably referred to Samuel Harris as the 'Doctor' - the colloquial term for surgeons in Newfoundland - and Harris treated him personally for a variety of medical ailments.26 Surgeons were a fixture of the eighteenth-century fishery. John Reeves observed that 'in every harbour, almost, there is resident a surgeon, or medical man.'27 To protect their interests, merchants in each harbour contracted surgeons to provide basic medical services to the working population. In a system dating back to the seventeenth century, at the start of the fishing season each servant had to enter his or her name on the doctor's books of a surgeon, usually chosen by the master, and to pay a flat fee at the end of the summer. Servants who needed special care for injuries or extended illness paid additional charges.28 Evidence points to an abundance of medical practitioners in outport communities, such as Trinity, which had at least five known surgeons in the late eighteenth century. In addition, there were several surgeons and apothecaries attached to the army garrison at St John's and Placentia, as well as a surgeon on most rated warships on the Newfoundland station. Like those in Nova Scotia, surgeons attached to the military in Newfoundland could become established members of colonial society. They earned incomes which could surpass £100 for a single fishing season, making them the nearest thing to a professional class on the island.29 Consequently, surgeons were frequently appointed to serve as justices of the peace. Twelve surgeons can be positively identified as active magistrates. Three of the commissioners of oyer and terminer D'Ewes Coke, Thomas Dodd, and Jonathan Ogden - were also practising surgeons (Coke and Ogden were later appointed chief justices of the supreme court).30 Surgeons possessed three qualities desirable for local magistrates: they were relatively learned, actively willing, and readily available. The British government approved of this trend because it viewed surgeons as enjoying greater economic independence than other candidates for office. Surgeons were still somewhat dependant upon the merchants because they decided whose doctor's books the servants signed on to each summer. Reeves concluded, 'However, notwithstanding this, the surgeon is usually fixed on for as justice; being less interested than the merchants; less in the merchant's hands than the boatkeeper, or planter; and certainly better fitted by education than either of them.'31 He also recommended giving com-

148 The Rule of the Admirals

missions of the peace to the Church of England missionaries sent by the Society for the Propagation of the Gospel, but they were too few in number to be a significant source for potential justices.32 By the 1780s several surgeons - most notably D'Ewes Coke - had effectively become permanent, full-time magistrates, earning most of their income through court fees and emoluments.33 AN END TO SALUTARY NEGLECT?

At the end of the Seven Years' War in 1763 the government of New foundland was reorganized. The Peace of Paris returned the islands of St Pierre et Miquelon to the French but gave Newfoundland jurisdiction over Labrador, Anticosti, and the Magdalen Islands. Established imperial historiography sees 1763 as a watershed in British colonia administration: the age of salutary neglect had come to an end. Newfoundland historians have accordingly argued that the island entered a new era during which the British government took a far more activist role in its governance.34 In 1764 the Privy Council appointed Captain Hugh Palliser as governor; his vigorous five-year tenure witnessed a series of major initiatives. Governor Palliser stepped up the policing of treaty rights on the French Shore, assisted Moravian missionaries in Labrador, arranged for a nautical survey by James Cook, and attempted to establish relations with the Beothuk.35 Newfoundland historians have emphasized Governor Palliser's role in upholding imperial policies concerning the English migratory fishery and the truck system used locally by merchants and planters.'Palliser's solution to Newfoundland/ according to Patrick O'Flaherty, 'was to restore the old ship fishery, as regulated in King William's Act.'36 These efforts culminated in a 1775 statute, known popularly as Palliser's Act, which revised many of the regulations governing th fishery but did not significantly alter the island's system of government. Historians have debated the merits of Palliser's policies, but they generally agree that his governorship represented a departure from previous naval regimes.37 Recently, Sean Cadigan has argued that the law of wages and lien contained in Palliser's Act was a pivotal force in the history of the fishery. Armed with the right to a lien on their masters' fish catch to secure their wages, servants brought so many successful suits against planters that it forced the near abandonment of wage labour and precipitated the rise of the family fishery.38 Far from being a break with the past, however, Governor Palliser's

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administration marked the continuation of a trend stretching back two generations. As elsewhere in British North America, the expansion of colonial administration did not begin in the 1760s but was part of a longer process of strengthening imperial authority which had started in the late 1740s.39 And, as had occurred in 1749, the onset of peace in 1764 released naval officers stationed at Newfoundland from the exacting demands of wartime service. Palliser built on the foundation of legal reforms laid by Governors Clinton and Rodney, in particular the system of surrogate courts in the outports. Palliser's first move, even before he arrived in Newfoundland, was to establish the commissions and districts to be allocated to his junior officers. He added the innovation of formally matching these naval zones with the civil districts of the justices of the peace, thus cementing the link that had first been made by Clinton in the 1730s. Using the colonial secretary's Letterbook, Palliser ensured that the administrative jurisdictions were formally recorded and absorbed as part of the judicial system. The strengthened surrogate courts covered all of the coasts and islands under the governor's jurisdiction. Like the reforms undertaken in 1729-30 and 1749-51, this move was designed to project British sovereignty as well as the rule of law. It was also part of a broader effort to enforce the implementation of the Treaty of Paris and to police relations between English and French fishing operations.40 With five ships stationed around the island - plus the king's schooner or other small craft at his disposal - Governor Palliser had ample resources with which to operate the judiciary and to implement whatever policies he saw fit. THE O P E R A T I O N OF THE DISTRICT SYSTEM

The surrogate court convened by Captain Charles Sexton at Placentia in September 1764 provides an excellent example of how the district system operated. Upon arriving in HMS Pearl, a thirty-two-gun frigate, Captain Sexton held eight sittings by adjournments during the fifteen days his warship was in port. The court proceeded according to the daily business brought personally before the surrogate: on two occasions it convened but did not hear any cases.41 This indicates both an attention to administrative detail and the fact that the judicial system likely met the basic needs of the local community. One of Captain Sexton's first duties was to assert British sovereignty via the governor's commission. Sexton took pains to promulgate Palliser's decrees, ensuring that they were copied into the district minute book.42 He also used

150 The Rule of the Admirals Map 5.1 Governor Palliser's scheme of civil and naval districts, 1764

Surrogate's commissions Capt. Hay HMS Solebay Capt. Perceval Capt. Thompson Capt. Sexton

HMS Tweed HMS Lark HMS Pearl

Capt. Phillips

HMS Spy

Commissions of the peace Bonavista To the Trinity Northward Harbour Grace St. John's Bay Bulls Ferryland To the Renews Southward Trepassey Placentia

from Quirpon to New Ferolle and the coast of Labrador from New Ferolle to Cape Race from Cape Race to Quirpon from Cape Ray to Cape Race, including the Magdalen Islands from Cape Race to Bay Bulls

William Keen, jun. John Harris; John Garret Blake Charles Garland Michael Gill; Edward Langman Nath. Brooks Peter Weston; Robert Carter Richard Ball William Jackson Robert Edgecombe; Jonathan Haddock

Source: PANL, GN 2/1 /A, vol. 3, 222-3.

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the surrogate court to certify locally a decision that had been made by the governor's court at St John's. Upon hearing a suit for trespass, Governor Palliser had examined both parties, fined the defendant ten pounds in damages, and stipulated that the judgment be confirmed at the next sitting of the Placentia district court. Captain Sexton worked cooperatively with Robert Edgecombe, the senior justice of the peace.43 The surrogate court apparently heard all of the outstanding cases in Placentia: of the seven suits brought before Sexton, four were for servants' wages, two for ownership of local property, and one for a disputed hand-note.44 Captain Sexton's court functioned as a forum for transacting the business of local government. In effect, it substituted for the quarter sessions that figured prominently in the management of English counties and towns. Sexton's judicial administration conflicts with the caricature of frontier justice: he dismissed one case for want of evidence and another because of a lack of material witnesses.45 In his capacity as deputy governor, Captain Sexton issued a grant for a piece of land and conferred seven licences to sell liquor. He also received a petition from the local planters concerning problems in the provisioning trade at Placentia.46 These proceedings were part of a broader trend whereby petitions replaced grand jury presentments as the primary means of local representation. In the outport districts, merchants and magistrates preferred the custom of holding an ad hoc meeting, which either acted summarily or, if it entailed a substantial project, solicited the governor's approbation. When the justices of the peace in Trinity wanted to construct a local gaol in 1758, for example, they asked Governor Edwards for permission to appropriate the district's fines for the building costs. While admitting that they could build a gaol 'without troubling your Excellency/ if they secured a grand jury presentment through the district court of sessions, they couched their request in terms of the need to avoid such a course of action: 'This method would be followed by many inconveniences to us - and we beg your Excellency will take the premisses into consideration and grant us an order for building and maintaining a gaol.'47 The inconvenience to which they referred was the difficulty of persuading enough local merchants and senior planters to serve on a grand jury and attend court sessions during the busy summer fishery.48 Governor Edwards approved the magistrates' request, and no presentment was ever issued on the building of the Trinity gaol.49 The high level of cooperation between justices and naval surrogates shown during Captain Sexton's visit to Placentia was echoed through-

152 The Rule of the Admirals Table 5.1 Distribution of cases in Trinity District, 1760-90 Composition of the presiding magistracy

Number of cases heard Proportion of caseload

Justices

Surrogate

Surrogate and justices

25 16%

63 41%

67 43%

Total number of cases: 155 Source: See Notes on Primary Sources

out the island. In Trinity district, joint sessions held by justices of the peace and naval surrogates settled over 40 per cent of the total cases heard from 1760 to 1790. These data likely underestimate the number of actions heard by justices of the peace, who did not keep as formal records as the naval officers. The joint sessions convened by the surrogate and magistrates in the autumn - often termed a surrogate court of sessions or general court of sessions - combined the broad powers of quarter sessions with the wide jurisdiction afforded by the surrogate's commission. At four of the sessions at Trinity, the local fishing admiral sat alongside the magistrates as an assistant. Autumn quarter sessions, which had become formalized as 'surrogate courts' by 1770, heard virtually every type of dispute except for capital offences. By tightening the bonds between the civil and naval magistracies, Governor Palliser ensured that the surrogate courts operated as effectively as possible. From the administrative centre of St. John's, where Palliser presided as de facto chief justice, the governor heard petitions and complaints from the outports, sending surrogates to the districts to implement orders as circumstances dictated. The district system provided an efficient method of communication and law enforcement. As a custom that had operated since at least 1701, when first noted in Larkin's report, the role of the Royal Navy had evolved from Captain Crowe's general court in 1711 - through Clinton's reforms in 1731 and Rodney's reorganization in 1749 - to become a highly developed and deeply entrenched judiciary. As we have seen, the Royal Navy was well suited to this judicial function because it had the material resources needed to convey English majesty and law to the outports. With the district system augmented by Governor Palliser, the island enjoyed a dual magistracy of naval officers and justices of the peace, as

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well as a three-tiered judiciary. It had a type of supreme court system (via the governor's court and St John's assizes), a local administration (sessions held by justices of the peace), and a circuit system (surrogate courts). The close relationship between surrogates and justices of the peace ensured that the naval officers were never wholly unprepared when they visited outport communities. In addition to the interviews with officials at the Board of Trade, governors could also consult longserving justices when sitting on the bench or formulating decisions based on written appeals. In other words, the district system mitigated against the danger that newly appointed officers would be incapable of dealing with local problems. When surrogates began their seasonal cruises along the coast, merchants such as Benjamin Lester took full advantage of the opportunity to collect information and socialize with the naval officers. As his diary for 1767 reveals, Lester viewed the annual arrival of the king's schooner as a natural part of the familiar rhythm of the Newfoundland fishery. In early August 1767, while drinking tea at another merchant's home, Lester first heard that Lieutenant John Cartwright, who had served as surrogate the previous year, had already begun to hold courts in Bonavista Bay.50 He received a letter from Governor Hugh Palliser, along with proclamations and orders to be published during the autumn sitting of the surrogate court.51 In mid-August HMS Spy, commanded by Captain Albright, arrived in Trinity Harbour.52 Albright came ashore to drink tea with Lester and brought a personal letter from Governor Palliser, informing him about the status of the French fishery. Albright dined at Lester's home the following evening and again three days later, before the Spy departed for St John's on 25 August.53 In late September and early October, Lieutenant Cartwright presided over the annual sitting of the surrogate court in Trinity harbour. Sailing south from Bonavista Bay, he arrived on 25 September, and Lester noted that 'at 8 a Clock arriv'd the King's Scooner Mr Cartwright from Shatteau Bay to hold his Courts as last Year.'54 Two days later Cartwright dined with his officers at Lester's home.55 When the court opened later in the week, Lester figured prominently in the proceedings. Unfortunately, he offered no comments on the actual ceremonies which accompanied the arrival of the king's schooner and the opening of the surrogate court. The only known description of a surrogate court appears in a memoir of Captain William Glascock, a naval officer who served during the governorship of Admiral Charles Hamilton: 'The court room had been a wooden storehouse for cured fish. Upon this

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store it was the bowman of the boat's duty to hoist a spare ship's ensign as a signal for holding court. Shortly afterward followed the captain's or lieutenant's coxswain, laden with a cloak-bag filled with books, the surrogate officer closed the train, attended by two of the resident magistrates, a couple of midshipmen, the captain's clerk as register [sic] of the court and a few fishermen of the place as criers and tipsavers.' Glascock believed that the local people saw the visiting naval surrogate as an impartial arbiter: 'On arriving near the court house he is met by a crowd of litigants and their friends, who are generally sincere in their demonstrations of personal respect and gratification at his arrival since they are more likely to obtain redress or justice at the hands of a stranger than from their own magistrates, who are often either plaintiffs or defendants themselves, and do not hesitate to influence their brother magistrates or even sit on the bench pending decisions of their own cases.'56 As an institution, the surrogate's court appears to have been bereft of the majesty typically associated with modern courts of law, but it nevertheless had its own distinctive maritime ceremonies and cultural significance for those who witnessed its proceedings. Historians have tended to cite uncritically reports from officials and governors, many of whom either had their own personal agenda or were simply giving a view from retirement.57 For example, long after his tenure as governor, Admiral Graves provided an oft-quoted assessment: 'the first summer the Governor cannot be supposed to know anything; the second he acquires a heap of inconsistent accounts of the customs of the country given by interested parties; by the third summer he has familiarized himself sufficiently, but then his term abruptly ends before he can make a mark as an administrator.'58 Such arguments have to be balanced against specific contexts - in this case, Graves had replaced Governor Webb at the last minute before sailing to Newfoundland in 1762 - and the disparity between rhetoric and action. In 1775, for example, Admiral Rodney offered a sour appraisal that conflicted with his actual record as governor.59 For the modern historian, the task is to navigate between the conflicting accounts supplied by contemporary observers. The starkest differences typically exist between the official reports of the army commander and the naval governor, both of whom had professional interests at stake. In 1785, for example, Major Elford, commander of the local garrison, sent a pessimistic dispatch to the secretary of state: 'I wish, my Lord, we had more troops here, this place is really of too much consequence to be neglected, and requires some necessary Acts of Parliament to be

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made for the salvation of it, but with the present mode of government it is impossible - an Admiral is appointed Governor for three years, of which he stays here three months each summer, the first of which he knows nothing about the condition of this place, the second a little, and the third he is indifferent about it as he is not coming again - in his absence we are governed by Justice of the Peace (for I have no civil authority invested in me) some of whom from their poverty are induced to do things apprehensive to individuals and injurious to the community at large.'60 The following year Admiral John Elliot, the naval governor, gave an account that contradicts Elford's report: 'It is with particular pleasure that I embrace this opportunity of acquainting your Lordship, that when I arrived here there was not a single man in prison; and that, owing to the many prudent regulations established by the late Governor Vice-Admiral Campbell, and the moderation and judgment with which they have been enforced by the magistrates in their respective districts, I have not had a single complaint... from any part of the Island/ 61 Both men no doubt exaggerated their assertions in order to protect their own interest, but their comments raise the question of whether the impact of the Royal Navy should be measured solely in terms of the time the governors actually spent on the island. I would argue that the effect of the Royal Navy's presence extended beyond the period its warships were actually in port. John Reeves, who was no apologist for the navy, portrayed its officers as champions of the rule of law. Reeves argued that the office of surrogate was a well-known and widely respected institution. The time of surrogating was looked forward to as a season when all wrongs were to be redressed against all oppressors/ Reeves claimed, 'and this naval judicature was flown to by the poor inhabitants and planters, as the only refuge they had from the west country merchants, who were always their creditors, and were generally regarded as their oppressors/62 Reeves may have overstated the case, but he captured the essential role of the surrogate system: whether the annual surrogate courts were entirely fair or just mattered less than the fact that they were seen to represent law and order. Justices of the peace in the fishing outports relied upon the surrogate courts, where they sat alongside naval officers, as an opportunity to settle serious disputes and to complete outstanding judicial business. After Captain Sexton sailed from Placentia in 1764, for example, the magistrates reverted to holding petty sessions when the need arose. The next spring, one justice of the peace bound two planters in recognizance on condition that they personally appear at the next session of the surrogate

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court.63 The district system had become a custom which local magistrates took for granted as part of the natural course of governance. WINTER AND SPRING IN E N G L A N D : FISH MERCHANTS, NAVAL O F F I C E R S , A N D P O L I T E S O C I E T Y

Even after the governor and his officers returned to England in the autumn, they still attended to matters concerning Newfoundland. In addition to the meetings held prior to the departure of the squadron in the spring, informal discussions frequently took place among naval officers and merchants involved in the Newfoundland trade. Benjamin Lester's diary sheds valuable light on how this social network functioned in London and the West Country. Lester kept a detailed journal throughout the winter and spring of 1769: these entries offer a remarkable opportunity to examine how the social world of a fish merchant related to the governance of Newfoundland. Although Lester was actively involved in English politics, his interests never strayed very far from the Newfoundland fishery. He did note the major events that occurred in the town hall, particularly the gossip surrounding elections.64 Socially, two groups dominated his world: his family, especially his brothers; and his circle of friends and acquaintances from the Newfoundland trade. Over two-thirds of the social occasions he attended in January - e.g., dinners, teas, outings, visits involved his family or his close associates from the Newfoundland trade.65 And the fact that the summer fishery was over did not mean that his work as a fish merchant had come to an end; on the contrary, the winter brought a new series of tasks to be accomplished before the fleet could sail in the spring. In early January, for example, he bought cables and three anchors at a public sale.66 He continued to gather as much news as he could on the success of his ships that had sailed to the Mediterranean markets, and was informed that the Sukey had arrived safely in Spain, where its cargo of fish had sold well.67 The flow of correspondence remained steady, and when some friends came to visit him, he noted, 'I could not come away from writing by post, that I had not the pleasure to see them.'68 The highlight of the season was Lester's two visits to London. On the first trip he set out from Poole with his daughter in a post-chaise and, after riding all night, they arrived the next morning, whereupon Lester took time only to change his shirt and went directly to the London Exchange. His initial visit was to his lawyer, with whom he settled an

Newfoundland under Naval Rule 157

outstanding bill for £185.69 Yet, even in London, the Newfoundland trade remained uppermost in his mind. The following day he called on the residence of Lieutenant John Cartwright. Like most naval officers returning to England with the Newfoundland squadron, Cartwright was granted a leave of absence once he had reported to the Admiralty.70 And, like Lester, he too remained active in Newfoundland affairs throughout the year. Lester also visited the London home of Captain Hugh Palliser, who had just finished the final year of his term as governor of Newfoundland. The two men had breakfast together and chatted for two hours.71 In addition to these social calls, Lester had to deal with the firm that insured his fleet of ships. He settled with the insurers about some cargo lost from the Two Brothers, which they allowed, and drafted a policy for the Amy.72 Having spent eight days in the city, he rode back to Poole, where he immersed himself in the parliamentary election for the borough.73 Within a week Lester returned to London, this time accompanied by his wife and his brother Isaac. He visited Palliser again for breakfast, and the following day he called on the new governor, Commodore John Byron, who was to take over the island's administration in the spring of 1769. He noted that Byron 'received me very well/ and Lester was no doubt anxious to establish a good working relationship with Palliser's successor.74 Lester then called on his underwriters, finalized the policy for the Amy, and went to the Exchange.75 He had negotiated to sell some seal pelts to a London merchant, but the deal fell through when they met at the Exchange. Lester reported: 'I was mistaken in the man, he quibbled from his agreement, and without we had 15 seal, he could not or would not take it on the terms agreed, words arose and we parted.'76 They later talked at a coffee house but could not come to an agreement; infuriated, Lester went to his lawyer, who advised him that he had solid grounds on which to initiate a legal action. Threatening a lawsuit, Lester finally wrung the price he wanted from the merchant, and he departed for Poole the next day.77 Lester did not restrict himself to business, however, and both trips to London were full of politics and socializing. In February he attended a House of Commons debate on the validity of a parliamentary election for the borough of Poole; when a new vote was called, Lester's political ally won the seat by acclamation.78 Lester observed the great excitement over the Wilkes affair and encountered a large crowd of political protesters along the road.79 He went with acquaintances to see two plays - one at Covent Garden, the other at Drury Lane - and visited

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the public exhibition of an aboriginal woman and her son.80 After attending the Robin Hood Society, he dined with a friend at a steakhouse.81 Lester's visits to London distinguished him as just another member of the polite society which flocked to enjoy the pleasures of the city each winter.82 He may have been a fish merchant who divided his time between Trinity and Poole, but he was also a propertied Englishman who participated fully in the social life of his age.83 Lester had no evident difficulty managing his trans-Atlantic lifestyle, for he treated Newfoundland as essentially an English back country. Acutely aware of the source of his growing wealth, he tirelessly pursued his Newfoundland interests throughout the calendar year. In a telling act of symbolism, he had a plaster model of a codfish built into the fireplace of his mansion at Poole.84 Lester's position in Trinity was strikingly similar to the dominant role played by John Pynchon in seventeenth-century Springfield.85 Both men used webs of clientage and patronage to establish their authority over the local populace. Pynchon and Lester wielded power through a strict paternalism guided by profit; in managing labour, they alternated between discipline and indulgence, depending on whichever tactic delivered the optimum economic return. But a fundamental difference separated the two men: whereas Pynchon worked to build a viable community in the New World, with all its attendant institutions, Lester remained oriented towards England. For Benjamin Lester, the Atlantic passage was in no way comparable to the psychological break experienced by most New England settlers.86 Lester treated Trinity as an extension of his operations in Poole, where he invested the wealth accrued from the Newfoundland trade. He alternated between life as an outport merchant and as a member of the English gentry with remarkable ease: he did not have a dual identity so much as he viewed England and Newfoundland as part of a single cultural continuum.87 Lester and his peers opposed introducing civil government in Newfoundland in large part because they viewed it as their back country. In one of the ironies of Newfoundland history, the fact that outports like Trinity were such an integrated part of the Atlantic economy meant that the colonial elite could do without the English institutions re-created in colonies such as Massachusetts. M A K I N G LAW WITHOUT A L E G I S L A T U R E

The written law of Newfoundland altered substantially during Governor Palliser's tenure from 1764 to 1768. Upon his arrival, he stepped up

Newfoundland under Naval Rule 159

enforcement of the customary law of master and servant. He reiterated the proclamation issued a decade earlier by Governor Bonfoy for the adjudication of master-servant disputes according to local custom, in particular the servants' right to a lien on the season's fish catch.88 This discourse of custom permeated the administration of justice in a manner similar to the liberal ethos of the nineteenth century: in both cases inclusive rhetoric and an appeal to legal traditions were used to legitimize essentially hegemonic power.89 In practice, the customs of the island's fishery comprised a mixture of the informal laws, regulations, and traditions adopted over time to ensure the smooth operation of the fishery. Specific customs found to be unreasonable or incompatible with the common law could be overruled by judges of the high courts. While some customs were no doubt ancient - in the sense of originating in time out of memory90 - others were relatively recent measures. Informal arrangements regulating the fishery such as the adjudication of master-servant relations, were continually adjusted and augmented according to the perceived needs of those in power. Law reform comprised part of the broader process of enforcing local authority. To ameliorate persistent problems in settling accounts at the end of the fishing season, Governor Palliser issued a notice to all merchants and traders, asking them to meet and consult with each other, in order to recommend ways to improve the existing system for collecting debts.91 At the same time, Palliser published another proclamation, this one directed to the planters and all others concerned in the fishery. He sought to draft a general regulation to impose a fair procedure for recovering debts that would provide security for fishermen and planters. 'I desire you will meet and consult together/ Palliser ordered, 'and let me know what has been the ancient practice before these illegal methods became so common what are the several hardships the fishermen feel and suggest to me the method you think best to answer these ends.'92 By working to identify and enforce legitimate local customs, Palliser was adhering to English common law.93 He was especially careful to differentiate between ancient customs and recent abuses in the fishery. Enforcing the authority of particular customs determined by a jury (i.e., an assembly of planters and merchants) represented a central aspect of the common law tradition. Seen in this light, Palliser was merely acting as a judge presiding over the Newfoundland legal system.94 Law-making in eighteenth-century Newfoundland was distinct in one important respect. In most official British colonies law-making on such a scale - in this case, the heart of the island's contract law - would

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have involved a legislature or other type of assembly formally constituted by statute and reported in the local press.95 In Newfoundland, the governor alone presided over such proceedings: he personally issued proclamations to confirm decisions and, at his discretion, lobbied the British government to draft legislation. The crucial difference between these two processes was political representation: whereas the propertied classes throughout colonial America registered their opinions in local legislatures and in the press, in Newfoundland the naval governor controlled how questions of law were presented to the British government. Granted, when merchants wished to protest against either a governor's administration or an official policy, they could pursue the matter in England. As we have seen, merchants could indeed exert political pressure in London - as they did in the early 1730s - but this required considerable time and organization, and did not guarantee access to the corridors of power. Governor Palliser framed his initiatives in the language of liberating an oppressed people. In his returns to the 1764 heads of inquiry he asserted that 'the greatest part of the inhabitants live as mere savages, without religion,' and, as a result of chronic indebtedness, they were 'little better than slaves.'96 Faced with Palliser's impassioned arguments for reform, the British government directed the Board of Trade to prepare an extensive report on the state of the fishery.97 George Grenville's ministry considered making major changes in imperial policy with respect to Newfoundland, and Keith Matthews argued that the proposed reforms would have given the island colonial status and perhaps representative government by 1770.98 However, the entire matter was dropped when the Rockingham Whigs came to power. In the wake of the Stamp Act crisis, Newfoundland fell off London's political map.99 In the absence of a new statute or prerogative writ, proclamations from the naval governor continued to guide the administration of law. In September and October 1764 Palliser issued four decrees that revised the regulations governing debt, contract, and vagrancy. He sought to establish new rules for settling contracts in a manner that protected servants' wages fairly and proportioned outstanding debts equitably. First, he ordered all masters and employers of fishing servants to settle their contracts within six days of the expiration of the terms stated in their shipping papers. Masters who refused to do so were required to victual their servants and to pay them their regular wages until the outstanding accounts were finally settled.100 Second, Palliser outlawed the

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practice of summarily seizing fish catches as collateral or payment for debts. Recognizing the servant's lien to protect their wages, he ruled that creditors should follow the custom of the fishery and be entitled to the proportion of their debts that could be repaid voluntarily. If the courts suspected that the debtors could not discharge all of their just debts, the servants' outstanding wages were first to be secured. With the creditors responsible for paying outstanding wages, the servants were obliged to fulfil their duties until the end of the fishing season, when a legal division of the debtors' effects would be made to each creditor in proportion to the respective debts.101 In taking such action Palliser was upholding official prohibitions against the truck economy.102 The British government wanted fishing servants to be paid their lawful wages and to leave the island when their contracts expired in the autumn. Governor Palliser's other two decrees applied the official policy of preventing surplus labour from accumulating during the winter. The imperial policy that the fishery should be a nursery for sailors, supplying a fresh pool of newly trained seamen each year, had been enshrined in King William's Act. 'Dieters/ or idle fishermen, had not been singled out, but the intent of the law was clearly to prevent the accumulation of a local glut of experienced sailors who would depress the demand for new fishermen or mariners from England.103 While recognizing servants' rights to their wages, Palliser also sought to keep them from becoming indebted or idle. He issued a proclamation designed to stop the practice of allowing servants to purchase liquor on credit. It directed the island's magistrates not to compel any master to pay for their servants' debts to publicans or others retailing liquor.104 While this measure checked servants' behaviour indirectly - the logic being that unpaid debts would result in less credit and therefore less drinking Palliser's fourth decree placed considerable restrictions on the rights of the island's labourers, most of whom were Irish Roman Catholics. Tor better preserving the peace preventing robberies, tumultuous assemblies, and other disorders of wicked and idle people remaining in the country during the winter/ Palliser ordered: That no Papist servant man or woman shall remain in any place where they did not fish or serve during the summer preceding. That not more than two papist men shall dwell in one house during the winter, except such as have protestant masters. That no Papist shall keep a publick house or vend liquor by retail.

162 The Rule of the Admirals That no person keep dyeters [dieters] during the winter That all idle disorderly useless men and women be punished according to law and sent out of the country.105

The law to which Palliser referred was likely the English statute governing vagrancy. By the Vagrancy Act of 1744, persons deemed to be idle or disorderly could be sentenced to a term of transportation.106 Although King William's Act of 1699 remained the sole statute governing the island's fishery, by 1770 Newfoundland had acquired a significant body of state law. When the British government drafted new legislation for Newfoundland, it drew on the regulations already in force at the local level. The 1775 'Act for the encouragement of the Fisheries carried on from Great Britain/ known colloquially as ' Palliser's Act/ codified Palliser's decrees on wages, debt, contract, and vagrancy.107 While recognizing servants' right to a lien on their masters' fish catch, it criminalized breach of contract, providing for the corporal punishment of disorderly servants. The restrictions on Roman Catholics were not included, but all servants now faced stiff penalties for neglect of duty or desertion. Palliser's Act confirmed the judicial role that civil magistrates had been performing for over a generation. It empowered justices of the peace to hear and determine any wage dispute or offence committed by masters or servants against its provisions.108 The St John's vice-admiralty court was also authorized to hear disputes between masters and servants, but it never assumed a role comparable to the governor's court or the district courts. Although the vice-admiralty court heard a number of maritime cases in the 1750s and 1760s, the level of its caseload remained relatively limited, and its jurisdiction over masterservant cases was revoked in 1786.109 As a result of Palliser's Act, statutory law began to reflect local practices that had long been based on common law and the customs of the fishery. W A R S H I P S A N D STATE F O R M A T I O N

Throughout this period the Royal Navy continued to expand its presence in Newfoundland. In 1770 Governor Byron approached Benjamin Lester about building two shallops for the Royal Navy at his Trinity shipyard. Lester did not tender a bid until the Admiralty raised its initial offer, but in 1771 and again in 1772 he signed contracts to build two vessels, between twenty-five and thirty tons, to be used for the annual surrogate cruises.110 The number of warships stationed at Newfound-

Newfoundland under Naval Rule 163

land reached nine in 1773, enabling the governor to extend his authority around the island's coasts. The outbreak of the American Revolutionary War intensified this process. In 1778 local merchants requested protection against American privateers: promising to defray the costs of coastal defences, they successfully petitioned the government to station warships year-round.111 Demands from the North American station temporarily drained the squadron - only three armed sloops were present in 1775-6 - but by 1777 the ships patrolling Newfoundland consisted of two sixty-gun men-of-war, plus seven frigates and armed sloops.112 After the Americans captured the frigate HMS Fox off Newfoundland in June 1777, the Admiralty dispatched a line-of-battle warship, HMS Bienfaisant, to bolster the island's squadron.113 Privateers continued to plunder along the coast, cutting out twenty-two vessels in 1778, although the Newfoundland squadron managed to capture seventeen enemy ships in 1781.114 The increase in military force was part of a larger policy of deterrence designed to contain American and French expansion. Despite the failure of British strategic planning during the American Revolutionary War, the deployment of naval forces largely succeeded in protecting the fishery.115 The commitment to become more deeply involved in Newfoundland precipitated other initiatives, the most important of which was the survey conducted in the 1760s by Captain James Cook, who was a protege of Governor Palliser. Cook's work was designed to underscore Britain's commitment to Newfoundland.116 Accompanying Cook in 1766 was the famous naturalist Joseph Banks, who kept a journal detailing his observations of Newfoundland's natural environment. Banks noted that the role of the Royal Navy extended beyond the summer months, as governors appointed junior officers to keep the peace during the winter: 'Newfoundland has always been defended by a squadron of ships, the commodore of which for the time being is governor and administers civil justice returning home in the winter and leaving to a deputy whose title is no more than justice [with] the power of regulating small disputes in his absence. The captains of the different ships are sent to each of his particular station with the title of lieutenant governor.'117 In 1766 Captain Cook published his first detailed surveys of the south and west coasts: based on these charts, a new map of the entire island became available in 1775. This gave naval officers a far more accurate knowledge of the navigable waters, thereby strengthening the entire surrogate system.118 With some vessels stationed in Newfoundland year-round, officers could convene surrogate courts during

164 The Rule of the Admirals the winter months. In January 1779, for example, Captain Thomas Durell sailed to Trinity to oversee a homicide investigation conducted by the local magistrates.119 To privileged Englishmen like Joseph Banks, St John's was a primitive place with little to recommend it. Banks' journal reveals as much about his own personal biases as it does about life in Newfoundland, but it does provide a rare first-hand account of St John's during this period: It is difficult to compare one town with another, though that probably is the best way of conveying the idea; St. John's however cannot be compared to any I have seen. It is built upon the side of a hill facing the harbour containing two or three hundred houses and near as many fish flakes interspersed which in summer time must cause a stench scarce to be supported; thank heaven we were only there spring and fall before the fish were come to the ground and after they were done off. For dirt and filth of all kinds St. John's may in my opinion reign unrivaled as it far exceeds any fishing town I ever saw in England; here is no regular street, the houses being built in rows immediately adjoining to the flakes consequently no pavement, offals of fish of all kinds are strewn about, the remains of Irish mens chowder who you see making it skinning and gutting fish in every corner.120 From Banks's perspective, the only bastion of civility was the Royal Navy. To mark the anniversary of the king's coronation, Governor Palliser hosted a ball which Banks attended: I should not omit to mention the ceremonies with which we celebrated the coronation, which happened whilst we were there. The Guernsey [Palliser's flagship] was dressed upon the occasion and if I may compare great things with small, [it] looked like a peddler's basket at a horse race where ribbons and divers colours fly in the wind fastened to yard wands stuck around it. After this we were all invited to a ball given by Mr. Governor where the want of ladies was so great that my washerwoman and her sister were there by formal invitation, but what surprised me the most was that after dancing we were conducted to a really elegant supper set out with all kinds of wines and Italian liqueurs to the great enjoyment of the ladies who eat and drank to some purpose; dancing it seems agreed with them by its getting them such excellent stomachs.121 The practice of hosting such social occasions was a long-standing cus-

Newfoundland under Naval Rule 165

torn among naval officers stationed in colonial ports throughout the British Empire. Like the warships moored in harbours from Boston to Kingston, the fifty-gun Guernsey represented not only military power but also social authority.122 As the war in America progressed, the British government continued to expand its military presence in Newfoundland. Faced with the continued threat of privateers, in November 1779 a volunteer force of two hundred men was raised to supplement the three hundred soldiers in the garrison. Governor Edwards ordered the establishment of what became known as the Newfoundland Regiment, which was recruited from St John's as well as fishing communities in Placentia and Conception Bays. Two fortifications were built to protect St John's: Fort Amherst, which guarded the Narrows, and Fort Townshend, a large installation centrally located on a hill overlooking the harbour.123 Fort Townshend included a residence and office for the naval governor, which became known as Government House. In addition, the British government appointed the first civil secretary to assist the island's governor. In 1779 Aaron Graham, an English lawyer, arrived at St. John's to serve under Governor Richard Edwards.124 Graham continued in this position until he returned to England in 1791. During his twelve-year tenure, he was universally regarded by the governors and magistrates as an able and efficient administrator and, according to one account, the 'greatest civil servant in the history of Newfoundland/ 125 Graham took over the government's record-keeping - he issued all of the governor's decrees and drafted most of the writs himself - and thereby ensured a relatively high degree of administrative continuity. To be sure, this nascent bureaucracy was very modest compared to the large colonies in North America, but it met the basic needs of propertied interests in Newfoundland. Governor Elliot successfully lobbied the secretary of state to give Graham a regular salary, and in 1787 the position of civil secretary was allocated £182 per annum.126 Although not as dramatic or far-reaching as Governor Rodney's reforms in 1749, the advent of the office of governor's secretary, who continued to be augmented by the commodore's clerk serving aboard his flagship, further enhanced the system of naval government. THE APOGEE OF NAVAL GOVERNMENT

Throughout this period, naval governors also significantly expanded the district system. Both the number and the range of judicial districts

166 The Rule of the Admirals Map 5.2 Warships on the Newfoundland Station, 1773

Vessel

Naval station

HMS Panther HMS Alborough HMS Rose HMS Nautilus HMS Otter

St John's harbour From Cape Bonavista to Cape Norman From Cape Race to Cape La Hune On the Grand Banks and along the coast from St John's to Cape Race On the coast of Labrador and the northwest coast of Newfoundland from Cape Norman to Point Riche Egmont At the Magdalen Islands and off Newfoundland from (schooner) Cape La Hune to Cape Ray, and from thence northward as high as Point Riche Labrador From the harbour of St Lawrence to Cape Ray and off the islands of (armed schooner) St Pierre and Miquelon Placentia From St John's harbour to Cape Norman and on occasional services (armed schooner) Gronville Carrying on a survey of the coast from Point Lance to Cape Race and (brig) from thence as far to the northward as possible

Source: PRO, ADM 1/470,158.

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increased, in each of which justices of the peace were appointed. Naval surrogates conferred commissions of the peace in four new districts: Fogo Island (1776); Fortune Bay, on the western side of the Burin Peninsula (1784); Great St Lawrence, on the eastern side of the Burin Peninsula (1787); and St Mary's, on the Avalon Peninsula (1785).127 By 1790 the areas under the jurisdiction of the naval government stretched from Cape Ray on the southwest corner of the island, to Fogo Island off the northeast coast. To meet its growing administrative responsibilities, the Admiralty requested that two additional armed sloops be commissioned to serve on the Newfoundland station. The commissioner of the Navy Board asked Benjamin Lester whether he could construct two sixth-rate vessels in Trinity. Lester made a successful bid to build two forty-ton sloops for six pounds per ton, and the vessels were launched in 1790.128 In 1793 the island's squadron included one sixty-four-gun warship, three frigates, and five armed sloops. Over the next twenty years the number of warships fluctuated from a low of five in 1797 to a high of thirteen in 1805.129 Although the squadron remained much smaller than the fleet stationed at the Leeward Islands, it was ample enough to dominate the waters around Newfoundland. When placed in the broader context of colonial administration, the naval government in Newfoundland appears as effective as most other local regimes in North America. As Simon Devereaux has demonstrated, the costs of operating a centralized penal system were prohibitive in the eighteenth century: the British government assumed added expenses only when forced to adopt reforms.130 With an entire budget of less than £1,200, the island's government was not in a position to embark on large-scale projects.131 In 1787 Governor Elliott estimated that the expense of building a new courthouse and gaol at St John's would be over £1,000 and, not surprisingly, the proposal was never implemented.132 In colonial America and the early Republic, state authority was generally weak and institutional coercion relatively limited compared to Great Britain. Local law enforcement and penal practices varied markedly from region to region, and the administration of justice was often ineffective and arbitrary.133 As Gordon Wood has argued, the imperial state had a limited presence in colonial America. Royal authority operated largely on the surface of American life, concealing the underlying array of decentralized institutions and localized authorities that comprised the central governance of the colonies.134 The imperial administration of most British territories resembled more the mishmash of parochial privileges and liberties that confronted

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the French ancien regime than it did the relatively integrated relationship between London and the localities in Georgian England. Most colonists had little meaningful contact with the apparatus of state authority; local communities remained relatively autonomous and were, therefore, ill-prepared to accept royal authority when it intruded into their lives. A by-product of the dearth of formal systems of social control was the evolution of locally oriented cultural rituals that replaced the criminal law as the principal forum for regulating community relations.135 The inability of colonial states to enforce official authority beyond garrison towns and regional capitals was not restricted to the rebellious Thirteen Colonies. Across British North America, official authority was at times contested, superseded, or simply ignored. In addition to the fur trade territories, areas dominated by either staple industries or large-scale employment of wage labour witnessed systemic violence and outbreaks of unrest.136 Episodes such as the Shiner's War in Upper Canada demonstrated the limits to authority. Even in relatively quiet rural townships the local magistracy could have difficulty imposing its authority.137 Authoritarian administrations dominated by the British military - most notably the government in Halifax - were the exception rather than the rule of the colonial experience.138 As John Shy points out, 'The white population of the American colonies was arguably the most gently governed, lightly taxed, least oppressed people in the eighteenth-century Western world.'139 THE PERSISTENCE OF LEGAL CONFLICT

Naval government may have been firmly planted in the second half of the eighteenth century, but this does not mean that authority was entirely uncontested. As Michel Foucault argued, the notion that a single authority can ever be absolutely fixed and universally obeyed is a myth: power is constantly negotiated and is never static.140 Even in England, the authority of the state was seriously challenged in the eighteenth century.141 The claim that the legitimacy of naval government was somehow uniquely precarious distorts the context in which state formation occurred in Newfoundland.142 Clashes over law and authority continued to ebb and flow throughout the eighteenth century. Long after the disputes between the fishing admirals and justices had ended in the 1730s, magistrates still found themselves periodically under attack from planters and merchants who challenged their legal powers. The example of D'Ewes Coke's tenure at Trinity provides an

Newfoundland under Naval Rule 169

illustrative case study. Soon after his appointment as a justice of the peace, Coke found himself locked in a heated quarrel with George Bayly, a planter at Old Perlican. At a court convened by Captain William Parker and Coke in September 1772, Michael McGrath, one of Bayly's servants, had been summoned to answer for a seven pound debt. In response, Bayly wrote to Coke, telling him that he would pay his servants' wages and discharge his men - thereby enabling McGrath to settle his debts in Trinity - after he had first cleared his current accounts at Old Perlican. Coke replied that by not immediately obeying the court order, Bayly had shown great contempt for the governor's authority.143 Bayly's rejoinder, which Coke kept to show the next surrogate to visit Trinity, echoed the rhetoric of the 1730s. It affords a fascinating glimpse into local attitudes towards the magistracy: Yours I received and regarding the demand which G. Moors [the plaintiff] pretends to have on this house am amazed that a man of sense such as I looked upon Mr. Coke should decide an affair of any man without first hearing both parties, as yet you have only heard one man's story and I make not the least doubt when you are acquainted with what our people know of the affair you will change the opinion myself and Mr. MacGrath shall be at Trinity as soon as my affairs will permit at present 'tis impossible for the hurry of business which as a man who has been residing a while in this Country you must know it was this only which has prevented us being with you personally and no contempt of the Governor as a person who wishes to have some justice established in this Country I hold in as high esteem as any man and this same time give no leave to tell you sir that if you enquire of my own character you will find that in all respects I act as strictly unto honesty as any man yourself not excepted.144

Infuriated by this, Coke wrote a long response, reminding Bayly that by obstructing the summons - i.e., not settling McGrath's contract and permitting him to sail across the bay to Trinity - he had committed contempt of court.145 The remainder of Coke's letter offers an equally revealing insight into the highly personal nature of judicial authority in the outports: [l]n one part of your letter you say you looked upon me to be a man of sense, whether you ever did or whether you do now is really of so little consequence that it will never give me one moment's pain (however vain

170 The Rule of the Admirals you may think me) I will venture to pronounce that I have sense enough to discern that your servant McGrath is not over burthened with honesty (tho' you may have for ought I know as you tell me as great a share as any man) I heard said McGrath is about to quit your service and as I understand Green Moores demand is upon him only and not upon your house. I think prudent he should give security for his appearance this Sir is the third method I have proposed for settling his affair and this last one purely to prevent your business being hindered and if he does not comply therewith I think it a duty incumbent upon me to proceed against him as the Laws of Newfoundland directs in these and the like cases.146

Clearly, justices had to be careful when dealing with men from the propertied classes. Although the days of the endemic conflict of the 1730s were long past, planters and merchants could and did resist the civil magistracy when they saw fit. Such incidents were not restricted to outport districts. At the same time as Coke was dueling with Bayly in Trinity Bay, the St John's magistrates informed Governor Shuldham that they too had been insulted in the course of performing their duty. According to the justices, in October 1772 John Hern, a fish merchant, had affronted John Phillips, the high sheriff. The magistrates reacted by summoning Hern, who sent a fellow merchant, Francis Smith, to answer on his behalf. Smith then confronted the entire bench, reputedly saying: 'the first that offered to meddle with him he would crop his ears; that he, Mr. Hern was a better gentleman than any of us out of Court.'147 From HMS Panther Governor Shulham replied to the magistrates' complaint by stressing that he would always support them to the utmost of his power. He authorized them to proceed against the two merchants as the law directed but - in a telling qualification - added that the men should be treated with all the decency and indulgence to which they were entitled as gentlemen, merchants, and British subjects.148 These types of disputes remained relatively isolated incidents and did not pose a serious threat to the island's judicial system. CHALLENGING CUSTOMARY LAW

In the 1780s a series of problems in the judiciary burst into a large-scale crisis which temporarily paralysed the legal regime on which the island's governors had relied since 1749. The debacle stemmed from a prosecution brought in Exeter against Governor Richard Edwards for a

Newfoundland under Naval Rule 171

decision he delivered in 1780 during a sitting of the governor's court. The details of the case were murky even to those who attended the trial. It appears that a planter in financial trouble had brought an action against Governor Edwards to recover an allegedly unlawful fine levied by the governor's court. The suit was settled out of court, but its effects were far-reaching. Aaron Graham summarized the situation in his testimony before a House of Commons committee in 1793: [F]rom the beginning of the establishment of a fishery upon that Island, there have been courts for the trial of civil actions; at St. John's, it was held by the Governor; at the Out Ports, by the Captains of the Ships of War, who were called Governor's Surrogates; neither the Governor's nor the Surrogate's powers were doubted, until about the year 1780, when Governor Edwards had an action commenced against him, which was tried at Exeter (for a decision of his made at St. John's). That the witness attended the trial and the matter by the recommendation of the judge was left to arbitration; from that time he frequently heard, both in Newfoundland and in England, the powers of the Governor and his Surrogates spoken of as illegally assumed by them; Admiral Campbell, who was Admiral Edwards's successor, would not sit as a judge; but the practice continued by the surrogates at the out ports.149

Though Admiral Edwards bristled at suggestions that he had somehow been at fault, the ramifications of the affair were more important than what actually had transpired in Exeter. As a customary institution, the governor's court had no formal legal basis other than the appellate jurisdiction granted to naval officers by King William's Act. Admiral Milbanke, governor in the period 178992, considered it imprudent to risk his reputation and fortune 'in defence of a custom, which, if not a bad one, had never been legally sanctioned.'150 Efforts were made to transfer the governor's customary jurisdiction to the justices of the peace, but this proved impracticable. There is only one extant reference to a governor's court being held after the trial in Exeter - in 1785 a court convened by the governor and a bench of justices heard a property dispute - but this did not mark its resurgence.151 The governor's court never recovered from the incident in 1780 because subsequent governors knew full well that the stakes had become too high. They had good reason to fear lawsuits arising from their actions on the bench: the governor's court was a customary institution that had never been tested under English law. As we have

172 The Rule of the Admirals

seen, legal opinions given in the 1730s had ruled that the governor could not sit personally as a civil magistrate. The demise of the governor's court illustrated how quickly a particular custom could be undermined when it relied upon a voluntary bench and locally constituted authority. The need to find an alternative court produced one last effort to make the position of fishing admiral an effective judicial office. According to Aaron Graham, the governor's civil secretary, the authority to hear disputes relating to ships' rooms was given to the admirals, who had long held de jure cognizance: 'All questions respecting the right and property of fishing rooms etc. have, since the beginning of Admiral Campbell's government in 1782, been tried by the fishing admirals according the Act of 10th and 11th William 3rd and their decisions have generally been acquiesced in. Before that time (for many years back) it was customary (tho' contrary to the Act of Parliament) for the Governor and the captain of the ships of war under the denomination of surrogates, to take cognizance of those causes in the first instance.'152 Not surprisingly, this initiative was short-lived. As we have seen, the admirals' courts heard relatively few cases, and they usually acted only after receiving orders from the governor or one of his junior officers. Captain Henry Nichols, commander of the Echo, which was stationed in St John's harbour in the spring of 1784, reported: 'I found the people here rather disposed to dispute the authority of the fishing admirals.'153 In 1786 a delegation of West Country merchants suggested that the admirals' courts would be more effective if they were allowed to appoint deputies to hold sessions when they were at sea, but the British government rejected this proposal.154 The reluctance of governors to serve as judges also left naval surrogates to shoulder an increasingly heavy caseload. Yet their powers also derived from customary law, and the surrogate courts soon came under scrutiny by English courts. At the Devonshire quarter sessions in 1788, Richard Hutchings, an English merchant, successfully appealed a decision made in a surrogate court by Captain Edward Pellew (later Viscount Exmouth). The previous year Hutchings had sued a planter in the Ferryland district court to recover a debt; after the civil magistrates had ruled against him, he appealed to Pellew, who upheld the judgment. Upon returning to England, Hutchings brought an action of trespass, and the presiding judge found that Pellew had no lawful authority to hear Hutchings's case.155 The basis of the judgment by the Devonshire bench was likely the fact that King William's Act gave

Newfoundland under Naval Rule 173

naval commanders the power to act as appeal judges only for decisions made by the fishing admirals.156 This judgment wreaked havoc on the administration of law in Newfoundland. In April 1789 the crisis worsened when Hutchings's solicitor threatened further legal action against Captain Pellew. Pellew appealed to Admiral Mark Milbanke, who was to begin his first year as governor that summer, to help him secure a defence lawyer from the British Admiralty. Pellew pointed out that it would be 'extremely cruel to subject me to such an expense for having simply done what I conceived to be my duty.'157 Faced with a deteriorating situation, Aaron Graham intervened on Captain Pellew's behalf. Explaining the history of the island's customary judiciary, Graham asked Admiral Milbanke to arrange for the Crown's law officers to consider the entire matter.158 Throughout the early summer of 1789 Milbanke worked aboard his flagship, HMS Salisbury, preparing the squadron for the Atlantic crossing, while he awaited word on what was to be done with the surrogate courts. Governor Milbanke did not receive the legal opinion until the day he was to set sail from Spithead. According to the report, neither the governor nor the surrogates could legally sit as judges in civil causes.159 This placed Milbanke in a precarious position. On the one hand, word of Hutchings's suit had already reached Newfoundland, where naval officers were unwilling to hear the scores of cases in which writs had been issued. On the other hand, the British government had neither constituted a new jurisdiction to replace the surrogate courts nor provided instructions on how to administer justice in the interim. Even before he set foot on the island, then, Milbanke's administration had received its first blow. LAW REFORM AND THE IRISH CONVICTS CONTROVERSY

Unsure of how to proceed, Milbanke approached Aaron Graham for advice on how to administer civil law under the cloud of Hutchings's suit. Graham recommended that Milbanke use the clause in his governor's commission empowering him to appoint judges - specifically commissioners of oyer and terminer and justices of the peace - as a basis to establish a court of common pleas to settle the backlog of cases that had piled up.160 Graham later testified that this rather spurious use of the commission was designed to cause as little disruption as possible to the customary legal system. He explained that Governor Milbanke appointed the naval commanders to be judges in the outport districts

174 The Rule of the Admirals

within their respective coastal stations; in the place of the customary governor's court, he appointed three civilian judges of a court of common pleas in St John's. In September 1789 Milbanke appointed seven men, including Graham, to be judges in the court of common pleas, three of whom - Coke, Ogden, and Buchanan - were already serving as justices of the peace.161 With regard to the surrogate system, Graham affirmed that Milbanke had 'only changed the name of Surrogate with that of Judge/ and the surrogates 'continued to do the business exactly or nearly in the same manner as they had before been used to it.'162 Courts of common pleas were duly held in the districts of Ferryland and Harbour Grace in September and October 1789.163 Pronouncing the new courts an unqualified success, Governor Milbanke reported: 'during my short stay there they decided in the most formal manner near thirty causes, without meeting with the smallest obstruction.'164 In spite of such optimism, the British government had not sanctioned this legal innovation. Milbanke would have to wait until he returned to London to secure official approval for his initiative. While Milbanke and Graham had been dealing with problems in the legal system, another crisis was brewing. In July 1789 over a hundred Irish convicts had landed at Bay Bulls and Petty Harbour. Dumped by the master of the Duke ofLeinster without sufficient provisions, the convicts made their way to St John's, where authorities struggled to cope with a potentially disastrous situation. All of the convicts were in immediate need of food and shelter; many were suffering from gaol fever, which quickly spread throughout the community; and some were dangerous offenders, a fact brought home when an attempt was made to set fire to the town. Soon after arriving in Newfoundland, Governor Milbanke arranged to ship the convicts to England before the autumn departure of the naval squadron.165 Milbanke informed William Grenville, secretary of state in the ministry of Pitt the Younger, who in turn notified the Irish government. In November 1789 Dublin responded by furiously protesting against any plans that would see the convicts returned to Irish soil. Governor Milbanke thus found himself at the centre of a political battle between the British and Irish governments.166 In December Dublin repeated its attack on the Newfoundland governor: John Fitzgibbon, the Irish lord chancellor, asserted that Milbanke had committed 'an act highly indiscreet at best,' and caustically remarked that the admiral would never deign to come to Ireland to defend himself.167 Grenville ignored the virulence but pounced on the fact that statutory law entitled Ireland to

Newfoundland under Naval Rule 175

transport convicts only to a British colony.168 In a statement often cited by historians, Grenville declared: 'Newfoundland is in no respect a British colony, and is never so considered in our laws. On the contrary, the uniform tenor of our laws respecting the fishery there, and of the King's instructions founded upon them goes, as I apprehend, to restrain the subjects of Great Britain from colonizing in that island. I am not quite certain, but I believe that this policy is carried so far as even to authorize the Governor to remove by force the British fishermen who may show a disposition to settle on the island, and remain there during the winter.'169 He was asserting that since the convicts had not been transported to an official colony, their sentences had not been legally executed. The Irish government could therefore detain the convicts in Dublin and arrange to transport them somewhere else. Grenville's statement represented no more than an attempt to solve the immediate problem of the Irish convicts, and formed neither a general nor an accurate statement on the operation of the island's government.170 The disparity between official imperial policy and the actual administration of Newfoundland was larger than the Irish government could have imagined. As we have seen, in official terms Newfoundland was not a colony but a seasonal fishing station. It provided a nursery for British sailors and a means for the Admiralty to check French expansion. It was, to repeat a hackneyed quotation, 'a great English Ship moored near the Banks during the fishing season, for the convenience of the English fishermen.'171 However, as Keith Matthews clearly demonstrated, implementation of policy varied considerably according to economic pressures and political expediency.172 Domestic politics and European imperatives determined the course of British colonial administration far more than the particular legal or political concerns of the colonies themselves.173 Chief Justice Reeves decried the neglect fostered by the West Country merchants: The consequence has been, that Newfoundland has been peopled behind your back; you have abandoned it to be inhabited by any one who chooses, because you thought appointing a Governor would constitute a Colony and encourage population.'174 Reeves exaggerated both the influence of English merchants and the degree of official neglect - as recently as 1786 the British government had received a detailed report on law, government, and the island's growing population - but he accurately identified the gap that existed between policy and practice.175 In December 1789 Grenville reiterated his position that Newfoundland's status as a mere fishing station meant that the Irish convicts'

176 The Rule of the A dmirals

sentences had not been carried out. To back his claim he cited 'the Act of William and Mary and that of 1773 respecting the fishery there/176 Not surprisingly, Fitzgibbon replied that he could not find any 1773 statute (Palliser's Act of 1775), but he had perused King William's Act and its provisions for 'temporary property' in Newfoundland. Still, Grenville's scheme had the desired effect. Fitzgibbon reported that his government had recalled a revenue cruiser sent to block any attempt to land the convicts in Ireland and - while still maintaining that Milbanke had acted improperly - informed Grenville that he had reconsidered the affair in light of the fact that 'Newfoundland is not a British colony.'177 Betraying a mistaken impression that settlement was strictly forbidden in Newfoundland, which British officials were not about to correct, Fitzgibbon conceded: 'Certainly, if the King's subjects are by law prohibited from remaining in Newfoundland after the fishing season, with a view to prevent them from interfering with the persons who carry on the business of the fishery, this will go a great way to justify Governor Milbanke in the act which he has done; and if we are enabled to stand upon his conduct as justifiable by the laws of England, I am ready to agree with you that the British Government could not dispose of our convicts in any other way than that in which I fear they have already been disposed of.'178 With the primary legal obstacle removed, the crisis diffused and the convicts were finally returned to Dublin in January 1790. 'I am in great hopes,' Hobart wrote to Grenville, 'that you have given us a loop hole, which will get us out of the scrape/179 The loophole proved to be sufficient: though the fate of most of the Irish convicts remains unknown - Bob Reece has traced twelve of them in a shipment of convicts transported from Cork to New South Wales in 1791 - the affair was over as far as the island's government was concerned.180 Able to return to his program for legal reform, Governor Milbanke submitted a comprehensive report to the home secretary and the Committee of the Privy Council for Trade.181 Compiled by Aaron Graham, it outlined the problems in the civil courts and argued strongly in favour of the court of common pleas.182 In response to petitions by West Country merchants against the new court, Milbanke restated his case in February 1790.183 But London took no action. In July 1790 Governor Milbanke appealed to Grenville that the Admiralty had ordered him to sail for Newfoundland, but he still had not received any word about his proposed reforms.184 Belatedly, the Committee for Trade heard the report of the attorney and solicitor generals, both of whom ruled that

Newfoundland under Naval Rule 177

the island's court of common pleas was 'not founded on any authority legally given to the said Governor, and cannot be supported or justified by law.'185 The British government informed Governor Milbanke that it would not constitute any new courts in 1790, directing him instead to rely upon the justices of the peace to hear civil actions.186 When Milbanke returned to Newfoundland he again operated the court of common pleas and - not for the first time in the island's history - official policy was subordinated to administrative expediency.187 He suggested that Parliament amend King William's Act to enlarge the naval officers' jurisdiction, but the British government opted instead to draft a new statute for Newfoundland.188 T H E R E S I L I E N C Y O F NAVAL R U L E

When legislation was passed in 1791, it provided only for a temporary court of civil jurisdiction. The Judicature Act was limited to one year, during which John Reeves, the newly appointed chief judge, would assess the requirements for the administration of law in Newfoundland.189 In November 1791 Reeves prepared his first report on Newfoundland's legal system in which he sketched plans for a new judiciary. He concluded by recommending that the British government establish some type of legislature in Newfoundland. Specifically, Parliament 'should give out of its hands, a small portion of its Legislative Authority and confer it, where it can be exercised with more circumspection and effect.' Reeves continued: 'I propose that the Governor of Newfoundland should be authorized with the advice (but not to be controlled by such advice) of a certain number of persons not being more than five justices of the peace, five merchants, five boatkeepers, and five other persons, whom he may please to summon (meaning to select some out of the different classes of men in the Island) and the Chief Judge and two Assessors of the Supreme Court, to make by laws, and regulations.'190 Such a measure would have forced the British government to acknowledge formally that Newfoundland had become a settled colony. Justice Reeves soon abandoned the concept of a legislative council in favour of more pragmatic measures. His second report advised the British government not to alter the basic framework of the island's governance. After visiting the outports in 1792, he affirmed, 'I am convinced, from what I there saw, that there is less need of regulations than of persons to execute them; and that instead of making new laws,

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we should first find a new set of magistrates to execute the old ones.'191 In the wake of Hutchings's suit, naval officers withdrew from their customary position as sole surrogate judges. Governors began to appoint civilians as surrogate judges, but officers and midshipmen continued to sit on the bench, usually alongside their civilian counterparts. Following a legal tradition that stretched back nearly a century, the commodore and his junior officers dominated the administration of law whenever they chose to intervene locally.192 Justice Reeves's recommendations formed the basis of Newfoundland's constitution for the next thirty years. In 1792 a second Judicature Act created a supreme court for both civil and criminal jurisdiction, and entrenched legally the system of surrogate courts that had long operated customarily.193 The supreme court and surrogate courts were to have a monopoly on civil actions, save maritime causes (to be heard in the vice-admiralty court) and wage disputes (which could be heard in courts of sessions or before two justices of the peace). The 1792 Act was for one year only and had to be renewed annually until 1809, when the judicial system was made permanent in statute law.194 It made no mention of the fishing admirals, and their jurisdiction was completely - and, one presumes, deliberately - omitted from the section delineating the organization of local courts.195 The British government was trying to close the gap between imperial policy and local practice, but it did so by tailoring law to available legal resources. Far from being seen as an aberration, this preference for local customs conformed to the English common law tradition. As Reeves explained to the House of Commons in 1793: 'It is a peculiar property of the law of England to give sanction and effect to local usages and customs that have prevailed for length of time. If the law of England is the rule of decision in Newfoundland, the customs and usages of Newfoundland would thereby become established, because the law of England opens and receives the customs and usages of the place into itself as a part of it, and the usage and custom would then become the law of the land by virtue of the force and efficacy given to them by the law of England.'196 Existing institutions, such as the surrogate courts, were favoured over innovations, in particular the court of common pleas. The supreme court augmented the judiciary but did not fundamentally alter the structure of naval government.197 The statutes of 1791-2 were not rungs in a teleological ladder of legal progress. The naval government continued to function essentially the same as it had prior to Governor Milbanke's tenure. Under this judicial

Newfoundland under Naval Rule 179

system the fishing admirals reverted to the minor role they had played prior to the 1780s. When Aaron Thomas compiled his account of Newfoundland in 1794, he repeated the familiar description of the fishing admirals system and depicted it as an obsolete institution which was no longer taken seriously as a source of local justice. Thomas admitted that the admirals' position was, in theory, still important, especially if 'he goes to sea a banking, he having command of all the vessels which are employ'd on the Grand Bank a fishing.' 'But this honor/ he continued, 'is perfectly nominal and the title Admiral is frequently derided and laughed at.'198 References to the fishing admirals continued to appear sporadically in nineteenth-century records. As late as the administration of Admiral John Duckworth, governor from 1810 to 1812, naval officers embarking on coastal cruises were ordered to assist the local admirals in carrying out their duties.199 With the exception of the governor's court, which was never revived, successive naval governors performed their duties largely as their predecessors had done. Admiral William Waldegrave, governor from 1797 to 1800, sporadically enforced the regulations governing the migratory fishery, such as the restrictions on real property, but preferred to take a pragmatic view of governance. As Patrick O'Flaherty has noted, despite the official pretense that Newfoundland was merely a seasonal fishing station, informal representative structures - particularly ad hoc meetings by merchants and magistrates - functioned year-round in St. John's. Throughout his administration, Governor Waldegrave steadfastly refused to initiate any reforms to the island's legal regime.200 In 1803 Governor James Gambier took the unusual step of criticizing imperial policy on Newfoundland. At the end of his governorship, Gambier wrote to the secretary of state: 'The present system of policy is insufficient for effecting the happiness and good order of the community which is the chief end of all government.' This I attribute,' Gambier continued, 'to the want of a power in the Island for framing laws for its internal regulation, and for raising sums necessary to promote any measure of public utility.'201 The proposal met with silence in London, and Gambier's successors lapsed into a conservative stance on the question of a local legislature. From 1810 to 1812, for example, Governor John Duckworth successfully resisted challenges to the status quo from a nascent reform movement led by William Carson, a Scottish physician.202 Denouncing Carson as a troublemaker, Duckworth deflated any hopes that Newfoundland would be granted an elected assembly in the foreseeable future. 203

180 The Rule of the Admirals NAVAL O P E R A T I O N S IN THE N I N E T E E N T H C E N T U R Y

By the early nineteenth century, the Royal Navy's presence encompassed much more than the brief visit of a squadron for a few months each summer. In 1808-10, for example, of the five warships stationed at Newfoundland, two - the Comet and the Mackarel - stayed in St John's harbour over the winter and sailed on cruises around the island as soon as the ice cleared in the spring. Supplementing the local vessels used by the surrogates, these ships provided year-round support for the civil magistracy. While officers now shared the surrogate bench with civilians, they still had a wide range of legal responsibilities. Naval surrogates were given a list of thirteen instructions similar to those issued to their predecessors three generations earlier. The orders ranged from enforcing the regulations protecting seabirds and overseeing the seal fishery to enforcing the laws governing the migratory fishery and the use of ships' rooms. Like the officers who policed the coast since the 1730s, they were required to assist local magistrates in keeping the peace in fishing communities.204 The Royal Navy remained a fixture in the public life of nineteenthcentury St John's, where warships had anchored every year for nearly two centuries. Historians have typically viewed the presence of the Royal Navy in port through the lens of maritime culture, particularly the impact of sailors on popular politics, the patterns of crime, and other social problems.205 While the caricature of the drunken sailor has been critically reappraised, the image of the navy as merely a conduit for the alternating extremes of repression and disorder still colours our understanding of its role in colonial governance. However, with hundreds of men and thousands of pounds invested in the defence and government of Newfoundland, the British Admiralty demanded that its squadron be well disciplined. The ships and sailors stationed at St John's followed a detailed series of port orders handed down from one commodore to the next. The squadron comprised both the symbolic and material power of the British Crown; the governor's authority depended in large measure upon the efficiency of the flagship and the attendant ships under his command. Unlike the gunboat justice practised at times in the Pacific, in Atlantic possessions populated by Europeans, the Royal Navy acted largely within the parameters of English legal culture.206 Official customs governed the Newfoundland squadron as soon as it approached the Narrows at the mouth of St John's harbour. The cere-

Newfoundland under Naval Rule 181 Table 5.2 Naval squadron at Newfoundland, 1808 Ship

Type

Guns

Commander

Antelope Comet Alert Adonis Mackarel

Flagship Sloop Sloop Schooner Schooner

50 16 16 10 4

Donald McLeod, esq., Captain8 Richard Henry Muddle, esq., Commander b Alexander Renny, esq., Commander Lieutenant David Buchan, commandingc Lieutenant William Carter, commanding

Source: PANL, MG 204, Duckworth Papers, box 1, 298. * Captain McLeod was a 'post-captain/ i.e., the commander of a rated warship with more than twenty guns, and the flag rank belonged to the governor, Admiral John Holloway. As the commander of the Newfoundland squadron, Admiral Holloway had an officer under his command, in this case McLeod, who served as the captain of his flagship. h Richard Muddle was not a captain in the sense that he had not been made 'post,' i.e., given command of a ship with more than twenty guns. A sloop-of-war was an unrated warship typically commanded by an officer with the rank of 'commander,' which was above lieutenant but below post-captain. Though referred to colloquially as the captain of his vessel, he was not entitled to the formal rank of captain until he was given a post-ship. e Lieutenant Buchan was also referred to informally as the captain of his vessel, but he was not entitled to the rank of 'commander' because the schooner under his command was considered too small to be a ship-of-war. Lieutenant Buchan later became a prominent surrogate magistrate and served the island's government in a number of capacities u n t i l l 835.

mony that marked the governor's arrival was crucially important to establishing the legal authority and political legitimacy of the naval government. By displaying at once the majesty and power of the British Crown, it reinforced a highly stratified social order, presenting the local populace with a tangible reminder of who ruled whom. If sailing during the day, ships approaching the harbour hoisted a blue flag at the main topgallant mast head, with a half-red and half-white flag (the flag of the Newfoundland convoy), at the fore-topgallant mast head, to be answered by either Fort Amherst or Signal Hill with a red pendant over a yellow one. If at night, they fired guns at precisely five-minute intervals, to be answered by two guns with the same space of time between them.207 Once the flagship had warped through the Narrows, it received a salute from the fort - ranging from fifteen to nineteen guns, depending upon the governor's naval rank - and returned it with an equal number. The flagship, which was usually a fifty- or

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sixty-gun ship, and its consorts then moored near the centre of the harbour with their bows facing the prevailing westerly wind: vessels were strictly forbidden to anchor above the flagship, that is, to the westward side, without the governor's permission.208 The actual arrival ceremonies followed a set of standing orders. Once the squadron had moored safely, the governor sent a memorandum to all of the commanding officers advising them to report aboard the flagship at precisely ten-thirty the next morning. The governor then embarked in his barge, flying his admiral's flag, followed by the rest of the commanding officers in their boats according to seniority, with their pendants at the bow.209 At eleven o'clock the governor landed at the King's Wharf, where he was received by a captain's guard from the garrison as well as the civil magistrates. He proceeded to the courthouse to read his commission before an assembly of the leading townspeople, and the chief justice administered the oaths of allegiance. With these legal duties completed, and having given sufficient time for the honour guard to re-form, the parade of dignitaries went to Fort Townshend, where the governor reviewed the garrison and received a salute from the army officers. Finally, the governor repaired to Government House - followed by the officers, magistrates, and principal inhabitants - and a large reception was held in the dining room.210 Once the ceremonies were over, the squadron settled into a routine based on the port orders that every warship received when it entered St. John's harbour. The ships took turns launching a guard boat, which patrolled the harbour each night and reported to the flagship every morning. Guard boats boarded each vessel arriving or departing St John's harbour (fishing vessels excepted), and inspected the vessel's articles to ensure that it carried no deserters or other unauthorized passengers. Men sailing without a pass, except those sailing to other parts of the island, were detained aboard the flagship while the officer of the guard conducted an investigation. Guard boats were responsible for keeping the Narrows clear, and they carried two extra sailors to help man vessels in need of assistance. No more than one in every five seamen of a crew could be impressed into the squadron; each vessel was subject to impressment only once during a voyage; and seamen were interrogated aboard the flagship before being entered into a ship's books. Liberty on shore for the sailors was strictly regulated throughout the squadron and totally prohibited on Sundays. Officers of the guard were to report any irregularities or intelligence immediately to

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the governor at Fort Townshend, while all official letters and papers had to be sent directly to the governor's secretary.211 Although the governor usually resided at Government House while the squadron was in port, his warships remained a focal point for both civilians and the military. When a convoy of merchantmen prepared to set sail, it followed the lead of the flagship, which issued orders through a sequence of signals.212 Each week the flagship signalled when the marines were to be landed ashore to drill and returned to the squadron in the evening.213 While guns were periodically fired to reinforce urgent signals, the succession of ship's bells (which rang every half-hour) and drums (which sounded every evening when the crew beat to quarters) sounded regularly throughout the harbour. Without a town clock, people living in St John's seemed to have relied on such maritime signals to help tell time. During a criminal trial in 1775, for example, a witness asked to recount the circumstances surrounding a homicide testified that it had occurred 'while the drum was beating on board the Admiral's ship.'214 Even after the construction of the first Government House, the squadron's warships remained a social venue for the local elite. At the 1789 assizes, for example, a servant testified that his master and mistress had attended a large party aboard HMS Pegasus which lasted well into the night.215 And, in addition to the harbour policing performed by the guard boats, the warships acted as the town's fire department, providing sailors and fire engines whenever a blaze erupted.216 The warships were also kept busy with convoy duty, shepherding the fishing fleets to and from Britain, Newfoundland, and the Mediterranean. By the early nineteenth century a staggered system of convoys had developed whereby the Newfoundland squadron operated yearround to meet the seasonal needs of the fish merchants. The ships commanded by Governor Halloway in 1809-10 had a wide range of responsibilities. In October 1809 Admiral Halloway returned to England in HMS Antelope, along with the sloop Alert, commanded by Alexander Renny, and a fleet of merchant vessels headed for the British Isles. In early December, Lieutenant Buchan, commanding the ten-gun schooner Adonis, oversaw the convoy of merchantmen bound for Portugal and Spain. Making the signal to weigh anchor, Buchan assembled the convoy outside St John's harbour and, following Admiralty regulations, tried to ensure that it sailed together at the same speed as the slowest vessel in the convoy. The Adonis made the Atlantic crossing and stood in for the Portugese coast, where the convoy anchored off Oporto

184 The Rule of the Admirals

and then proceeded south. Once he had dropped off the vessels bound for Lisbon, Buchan sailed to Cadiz and Gibraltar, where he moored with the remainder of the fishing fleet.217 After taking on fresh supplies, the Adonis put to sea on a cruise of the Western Islands for the rest of the winter and early spring of 1810. When the weather had cleared sufficiently, Lieutenant Buchan sailed back to St John's, where he provisioned for a cruise to the northern parts of the island. Buchan proceeded to the Strait of Belle Isle, called in at several outports along the Labrador coast, and sailed down the northeast coast of Newfoundland. Among his many duties, he had to monitor American vessels in the region, enforce the fishing regulations contained in the Treaty of Versailles, and suppress any illegal trading. To ensure that he could be contacted as soon as possible, Buchan was to leave a written report with the principal merchant in every harbour he visited. As his predecessors had done a century earlier, he compiled the returns of the fishery and completed the heads of inquiry given to all naval officers commanding vessels in Newfoundland. Buchan's orders stipulated that he terminate his cruise at the end of August and return to St John's harbour no later than 10 September. While the Adonis was leading a convoy across the Atlantic, two other naval vessels, the Comet and the Mackeral, remained in St. John's harbour over the winter. Once the last fishing fleet had sailed in December, the officers left behind secured the local naval facilities - among other things, they supervised the removal of the warping buoys from the Narrows - and waited for the ice to clear in the spring.218 During the ensuing months, they still had official responsibilities. Richard Henry Muddle, commander of the sloop-of-war Comet, was required to help local magistrates preserve the peace and good government of St John's.219 As soon as ice and weather conditions permitted in the spring, the sixteen-gun Comet set sail for the Grand Banks, where it protected British shipping and patrolled for the French. Muddle returned to St John's harbour in early July, provisioned his sloop, and informed the local merchants that a convoy would embark for Britain and Ireland on 21 July. Rendezvousing with the merchantmen off Freshwater Bay, the Comet was ordered to shepherd the convoy across the Atlantic, proceeding as far as the Downs if necessary, and to report to the Admiralty after anchoring at Spithead. In the meantime, the armed schooner Mackeral also had left St John's harbour in the spring, but it stayed in Newfoundland waters. Lieutenant Thomas Lee, who had replaced Lieutenant William Carter in 1809,

Newfoundland under Naval Rule 185

sailed down the Southern Shore to Ferryland, where he was ordered to help the vice-admiralty court recover any wrecks that had appeared on the coast.220 Lieutenant Lee then cruised west to enforce the governor's proclamation against destroying the colony of seabirds at Cape St Mary's. Having completed his duties on the Cape Shore, he proceeded to Hermitage Bay on the West Coast, where he was to preserve the peace and monitor any American fishing vessels in the region. The Mackeral was required to return to St John's harbour by the beginning of June and await new orders from the governor. While Lieutenant Lee patrolled the island's coast during the spring, Commander Alexander Renny had already set sail in the sloop-of-war Alert with a convoy of English merchantmen bound for Newfoundland. In March 1810 Commander Renny had assembled the first English fleet of the year: he called at the major West Country seaports - Poole, Teignmouth, Torbay, and Dartmouth - and waited twenty-four hours at each anchorage. Making the final signal to collect vessels off Falmouth, the 16-gun Alert led the convoy to St John's harbour, where it was to remain ready to put to sea again if needed for other maritime duties. If Renny received no further orders from the Admiralty, he was to act as he saw fit to protect the fishery.221 Taken together, the array of activities among the warships and officers indicates that the scope of naval government extended well beyond the period when the governor was actually in residence. CONCLUSION When a large-scale crisis hit Newfoundland in 1816-17, the local response was strikingly similar to the measures taken in 1789. In the face of disastrous fires, waves of bankruptcies, and outbreaks of civil unrest, merchants in St John's organized public meetings, established a committee, and proposed measures for the immediate relief of the community. In January 1817 Captain David Buchan, the surrogate magistrate who governed St. John's during the winter, convened a public meeting to nominate a committee, consisting of merchants and other prominent citizens, which then acted as an informal legislature. It passed a series of resolutions that included the division of the town into a system of wards.222 Local merchants also traveled to London to testify before a committee of inquiry at the House of Commons, where they warned against embarking on new initiatives in Newfoundland.223 As a letter to the Mercantile Journal explained, the need to

186 The Rule of the Admirals

reform the island's legal system paled in comparison with the pragmatic imperative to deal with pressing economic problems.224 From all appearances, it seemed as though the naval government would remain intact for another generation. Naval government had survived for so long because it protected the interests of those in power. From the 1730s to the 1810s, the governor, magistrates, and merchants constituted a de facto legislature and executive to approve and enforce local policies. This arrangement was limited to specific projects, such as building courthouses and other public works, or defraying the cost of criminal trials. Merchants did not become heavily involved in local government unless they perceived their interests to be directly threatened, as they did in 1729-31,1788-9, and 1816-17. From London's perspective, government in Newfoundland functioned relatively well, cost comparatively little, and caused few political problems. When the island's governance briefly occupied the centre of a dispute between London and Dublin in 1789, the British government used Newfoundland's lack of colonial status as a political loophole. Britain's policy with respect to the island was not wholly neglectful, nor was it inherently repressive or particularly enlightened. Rather, it followed the path of least resistance until forced in 1791-2 to legislate the minimum changes required for a functional judiciary. As we shall see, the Colonial Office was highly sceptical about establishing a local legislature in 1832 and did so only when spurred by a determined reform movement.

6

Using Mercy and Terror: The Patterns of Criminal Justice

In examining the administration of law in the criminal courts, this chapter explores how the power of the naval government was exercised in practice. Bringing offenders to justice at the autumn assizes provided the sole opportunity to punish capital offences until the squadron returned the following summer. For the governor at St John's, this constituted the climax of his seasonal government: supervising the assize session and the punishment of felons was the last official duty carried out before the flagship set sail. It marked both the literal and figurative affirmation of the state's ultimate power to legally kill its own citizens. The decision of whom and how to punish essentially the selection of those offenders deemed worthy of mercy comprised the most dramatic expression of discretionary authority. Analysing this process provides the means to probe not only the inner workings of the naval government, but also the propertied interests it upheld and the social norms it enforced.1 This study covers the entire span of the court of oyer and terminer, from its inception in 1750 to its replacement by the supreme court in 1792.2 It examines state-sanctioned pardons and capital punishment (whipping and other secondary punishments are discussed in the next chapter). Three main topics are investigated: the varying structure of the pardon process; the incidence and patterns of judicial mercy; and the function of capital punishment. These issues are addressed in the context of the underlying question of why some offenders were hanged

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while others were set free. The discretionary application of the rule of law forms the core theme throughout this discussion. Evidence from the assize records points to two key criteria rooted in class: the perceived character of the offender and the seriousness of the offence. These twin factors, both of which measured the degree of threat felt by the local community, emerged during criminal trials and spilled over into the post-conviction deliberations. This perspective views trial and punishment as parts of a single judicial continuum. The criminal trial represented the first stage of the penal regime: it afforded the principal opportunity to assess the character of an offender and the gravity of the offence, and to deal with the endemic fears of social unrest among the island's Irish fishing servants. Compared to contemporary England and Nova Scotia, the regime for punishing capital offences was lenient. The rate of pardons granted to offenders convicted at the St John's assizes was relatively high: more than 70 per cent of those condemned to death received pardons, threequarters of which were given without any restrictions or secondary sentence.3 Following the pattern generally found in colonial America, Newfoundland witnessed few executions.4 From 1750 to 1791 ten men and one woman were hanged at St John's. Executions were restricted to the crimes of murder, forgery, and rape: no one was ever executed for a property offence. Trends in Newfoundland reflected the patterns of punishment in the Georgian navy, in which few offenders were hanged but many received harsh corporal punishments. Governors brought the navy's legal culture to their role as both appellate judges and sole executive authority overseeing the administration of justice. The pardon process varied considerably according to the governor's administrative initiative. Some offenders remained incarcerated in difficult conditions over a year before being released, thereby making reprieves a de facto sentence to imprisonment. Yet the heavy use of pardons did not mean that the penal system was necessarily weak. On the contrary, mercy represented an expression of power as dynamic as public hangings. Pardons were granted in a manner calculated to reinforce the governor's authority and to legitimize the judiciary as effectively as possible. Reprieved felons and the community at large were reminded that only an act of gratuitous compassion separated freed offenders from those on the gallows. Decisions over whom to execute involved much more than the apportionment of culpability. Hanging represented a political as much as a criminal punishment: fears of sedition among the island's Irish community figured

The Patterns of Criminal Justice 189

prominently in nearly every execution under study. As in England and many British colonies, the Irish were a favoured target for state repression. A combination of exemplary capital punishment and recurrent whipping was used to punish servants, the majority of whom were Roman Catholics, to the end of the eighteenth century. V E R D I C T S AND THE PARDON PROCESS

From 1750 to 1792 the court of oyer and terminer tried eighty-six men and women for crimes ranging from murder to larceny. Of the accused, sixty-four were found guilty, fifteen not guilty, and two were dismissed before a verdict was given; the results of five criminal trials are unknown. Of those found guilty, twenty-three were given secondary punishments and thirty-eight were sentenced to death; the sentences of two offenders were not recorded because they had been condemned to death for another crime during the same assize session, while one man convicted of manslaughter was discharged without punishment. Although the evidence clearly points to a high pardon rate (71 per cent), the pardon process itself was not uniform and varied according to the initiative of the commissioners of oyer and terminer and the governor. The data must therefore be treated with caution, since the government did not treat all of those condemned to death in the same manner. In theory the system of dispensing judicial mercy was established in 1751, remaining unchanged throughout the period under study. At the close of the assize session, the commissioners of oyer and terminer submitted a report to the governor in which they summarized the case of each offender condemned to death. These reports usually included a recommendation on whether to issue a reprieve (for those convicted of murder) or a pardon (for all other felonies). The governor had to make all the necessary decisions before the autumn departure of the naval squadron. He had four options: issue a warrant of execution and supervise the public hanging; grant a free pardon (for all felonies save murder); grant a pardon contingent upon a secondary punishment; or issue a reprieve and, upon arrival in England, refer the case to the secretary of state (for murder only). The British government considered reprieves of those convicted of murder in conjunction with the governor's report and the transcripts of the offenders' trial. The secretary of state then arranged for pardons to be issued through the recorder of London, and transmitted the warrant to the governor before he returned to the island the following summer.

190 The Rule of the Admirals Table 6.1 Pardons granted to capital offenders, 1750-91 Offence

Condemned to death

Free pardon issued

Pardoned on condition of transportation

Murder Rape Burglary Forgery Larceny Receiving stolen goods All offences

18 3 1 6 10 1 39

11 2 1 3 3 1 21

0 0 0 0 6 0 6

Source: See Notes on Primary Sources

In practice, however, the pardon process was much more complex. A dual system evolved in which some governors exercised their full power to pardon offenders, while others referred the cases of all those condemned to death to the secretary of state. The tendency of some governors not to use all of the powers granted by their commissions did not indicate that offenders were spared the rigours of the law; rather, by passing on a reprieved offender's dossier to London, some governors ensured that he or she would spend at least nine months imprisoned in difficult conditions. Those whom the governor himself pardoned were freed within a month of their trial. The gap between theory and practice was evident in the first assize session held after Governor Drake had persuaded the British government to grant the governor the power to order executions or pardons in Newfoundland. Except for cases of treason, which the assize court could not hear, and murder, for which the governor could issue only reprieves, the island's government had full jurisdiction over the apportionment of mercy.5 Unlike Nova Scotia, where the governor exercised full control over the pardon process, in Newfoundland the judicial system seems to have reverted repeatedly to a position of dependance upon direction from London.6 As we will see, the practice of altering procedures in order to seek guidance for some cases did not mean that governors did not exert effective control over the decision-making process. At a court of oyer and terminer held in September 1751, William Fielding, a soldier in the local garrison, was convicted of rape and sentenced to death.7 Fielding was the first offender condemned to death in Newfoundland, and Governor Drake chose to issue a reprieve.8 Drake

The Patterns of Criminal Justice 191

sent a transcript of the trial to London, where Dudley Ryder, the attorney general, was asked for an opinion whether Fielding should be pardoned. Ryder did not directly address Fielding's culpability but focused instead on an irregularity he had discerned in the trial transcript. He noted that two of the depositions used in the trial apparently had not been personally attested to in court. Only the victim had given evidence viva voce, and she had equally implicated another soldier, whom the jury acquitted for the same crime. Whether the problem arose out of an incomplete trial transcript is uncertain, but Ryder was left with serious doubts. Noting that there had been no opportunity to cross-examine the witnesses and test the validity of the evidence, Ryder concluded that the defendant had not received a fair trial and recommended that he be pardoned.9 On the basis of this recommendation, the British government, acting via writ of the Privy Council, granted Fielding a pardon.10 This is the only extant record of a pardon request being referred to the Crown's law officers. The secretary of state alone handled all subsequent cases of reprieved offenders, placing requests for pardons before the King in Council without prior consultation with other officials. The deliberations over the Fielding case denoted two interrelated characteristics of the island's system for granting royal pardons. First, governors seemed to be uncertain in their course of action. They appeared reluctant to act independently in a matter where a life was at stake. This was partly due to the fact that the governorship normally rotated every three years: prior to the appointment of a civil secretary in 1779, some recently appointed governors were apparently unaware of the actions taken by their predecessors. Second, the British government was itself somewhat unsure of how to conduct the island's pardon process. Holdernesse was evidently not properly informed of the legal powers invested in the island's governor. The root of this problem was the relative infrequency of requests to consider the cases of offenders reprieved in Newfoundland: from 1755 to 1770, for example, no cases whatsoever were referred to the British government. Individual initiative of officials in both London and Newfoundland acquired a greater importance, therefore, because the procedure for granting pardons never became clearly established. In effect, the lack of consistency in the pardon process further enhanced the governor's discretionary authority. For some offenders the pardon process involved punishment as much as mercy. For example, in the aftermath of the first executions in

192 The Rule of the Admirals Figure 6.1 The pardon process, 1750-92

Death sentence

Murder: 1750-83,1785-91 Other felonies: 1750-1,1774-7

Murder: 1784 Other felonies: 1752-73,1778-91

Assize bench (pardon recommendation)

Assize bench (pardon recommendation)

Governor (reprieve granted)

Governor (pardon granted)

Within one month of trial

Secretary of State (pardon requested) Recorder of London (pardon issued) Secretary of State (pardon transmitted) Governor (pardon granted)

At least nine months after trial

Newfoundland in 1754, Governor Bonfoy reprieved five of the nine persons convicted for the murder of William Keen, the island's senior civil magistrate. Before sailing from St John's, Bonfoy sent a dispatch to the Board of Trade reporting that he would convey the full transcript of the offenders' trial when he arrived in England.11 He did not, as his predecessors had done, contact the secretary of state and - perhaps due to bureaucratic confusion - no action was taken during the winter of 1754-5.12 Bonfoy's successor reported that on his arrival he discovered that five men lay under sentence of death: having no orders on how to proceed, he decided to keep them in gaol for another year.13 No

The Patterns of Criminal Justice 193

governor was appointed for Newfoundland in 1756, and the offenders were not released until September 1757, after being imprisoned for three years.14 Despite its ostensible confusion, the judicial process worked according to design. Mercy and terror equally reinforced the rule of law and the established social order.15 From 1754 to 1757 for example, the judiciary reflected the fear generated by the Keen murder, which was the most infamous crime to occur in early Newfoundland. Even before the one woman and eight men (four of whom were soldiers) were convicted of murder, the courts had registered the seriousness of the offence. Prior to their trial, the court heard a petition from the commissioners of oyer and terminer which alleged that, because of the outrages committed by the soldiers, the townspeople were constantly in fear of their lives. The judges asked Governor Bonfoy to deport those soldiers identified as troublemakers and to keep the others confined to their garrison as much as possible.16 Although St John's had no local press, officials and residents had ample means to communicate their sentiments in public. Bonfoy ordered the five respited men to be dealt with in a manner similar to the four offenders hanged after the close of the assize session. As the warrant sent to the high sheriff demonstrates, mercy mitigated punishment but not guilt: '[A]s I have thought fit to respite the execution of Lawrence Lamley, Paul McDonald, John Moody, John Munhall and Dennis Hawkins, until his Majesty's Royal Will and Pleasure be known therein, you are therefore hereby required and directed to repair on board His Majesty's Ship Penzance [the governor's flagship, where they had been confined] at 11 o'clock this morning and take [them] under your charge ... and to proceed with them in the same manner as you did with the others executed, until you come to the gaol, when you are to cause Lawrence Lamley and Paul McDonald to be put therein, and to deliver up John Moody, John Munhall and Dennis Hawkins to the officer appointed to receive them, in order to their being confined in the garrison.'17 The men were probably led in a procession under guard from the dockside along the waterfront street known as the Lower Path at a time calculated to attract as many onlookers as possible. Emanating from the commodore's flagship - the figurative and literal source of power - this ceremony doubtless made a deep impression because St John's had witnessed the island's first hangings over the previous two days. The question of how the target audience itself - i.e., the town's mass of indentured servants, most of whom were Irish - viewed such

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messages is, of course, extremely difficult to answer.18 Three years later, the fate of the five offenders was still a public event. When Governor Edwards conveyed the pardon to Newfoundland, it was publicly read at the St John's courthouse, and a group of prominent citizens successfully petitioned Edwards to deport the men from Newfoundland.19 The operation of the pardon process depended largely on the governor's initiative. This wide latitude of discretionary authority reached the extremities of caution and efficacy in 1777 and 1784: in the former instance, the British government refused to consider the cases of two offenders, convicted of burglary and forgery, whom Governor Montagu had reprieved; in the latter, Governor Campbell independently granted a free pardon to a woman convicted of murder. These cases demonstrate that the aftermath of the Keen murder represented the exception rather than the rule: most governors were reluctant to order executions. If there appeared to be any circumstances favourable to an offender, the commissioners of oyer and terminer encouraged the governor to dispense mercy without equivocation. The problem Governor Montagu faced in 1777 was essentially of his own creation. At the assizes held in October 1776 three men -John Cox, Lawrence Hallahan, and Lawrence Dalton - were sentenced to death.20 Cox had been convicted of burglary, while Hallahan and Dalton were both found guilty of forging bills of exchange. Within a week of the assizes, Governor Montagu granted a free pardon to Dalton, who was then released without any conditions, but issued reprieves to Cox and Hallahan. Montagu chose to treat the offences differently despite the fact that he had the power to pardon all three felonies.21 Why he pursued this course of action remains unclear, but the seriousness of the two offences presumably dissuaded him from granting free pardons. Cox had committed two separate burglaries, during which he had stolen several pounds' worth of personal property; Hallahan had confessed to forging three notes, together valued at over twenty pounds, before the trial jury returned its verdict. Montagu could have issued pardons on condition of a secondary punishment such as transportation. The decision not to do so may have arisen because the option of transportation to America had ended with the recent outbreak of the Revolutionary War.22 In his report to London, Governor Montagu left the fate of Cox and Hallahan up to the British government.23 The secretary of state informed Montagu that the cabinet had approved the free pardon granted to Dalton but refused to consider the cases of Cox and Hallahan. Pointedly reminding the governor of his power to grant full

The Patterns of Criminal Justice 195

pardons in such cases, Lord George Germain told Montagu to take care of the matter himself.24 Germain arranged for Dalton's pardon to be passed under the Great Seal - a moot point, since Dalton had been a free man for five months - and Governor Montagu was left with no choice but to deal with Hallahan and Cox when he returned to Newfoundland the following summer.25 Montagu granted Cox a free pardon and sent the high sheriff a warrant for the execution of Hallahan.26 Seven years after the British government had reprimanded Montagu for not exercising his full legal prerogative, Governor Campbell actually exceeded the powers conferred by his instructions. At the 1784 assizes Sarah Spry was convicted of murdering her child.27 The case did not come under the 1624 Infanticide Act because Spry was married; instead, she had been tried for the common law offence of murder. In order to secure a conviction in such cases, the prosecution had to demonstrate that the child had been born alive and the mother had deliberately killed it.28 The trial jury nevertheless found Spry guilty and the court sentenced her to death. Governor Campbell faced two clear choices - issue a warrant of execution or a reprieve - but decided to pursue a third course. Directly disobeying his instructions, he granted Spry a pardon. In this case the type of offence shaped how mercy was administered. According to the pardon issued by the governor, Spry had killed a bastard child, and the fact that she had committed adultery had likely precipitated her conviction in the first place. She also confessed that she had delivered the child; this compounded her culpability because it removed doubts over whether the child had been stillborn. These two incriminating factors probably had induced the magistracy to charge Spry with murder and not a misdemeanour offence, such as public nuisance, for which similar cases were tried in the district courts.29 As the only indictment and conviction for infanticide throughout the period under study, this had been an atypical murder case from the outset.30 The commissioners of oyer and terminer recommended that Spry not be executed. They asserted that the only positive evidence that she had given birth to the child and had killed it was her own confession. They further pointed out that, although she was guilty of covering up the birth, this was not serious enough to justify capital punishment. The emphasis on concealment indicates that the bench viewed the offence primarily under the terms of the Infanticide Act,31 which singled out concealing a child's birth as the pivotal criterion for proving guilt, and not the common law offence of murder. Although

196 The Rule of the Admirals

the court had sentenced Sarah Spry to death, the bench did not necessarily consider her to be guilty of a capital felony. As John Beattie has demonstrated, by the late eighteenth century women were almost never hanged for committing infanticide. In England a shift in sentiment generally, and in attitudes toward infanticide in particular, had produced a legal culture in which it was no longer acceptable to execute a woman for killing an infant.32 Placed in this context, Governor Campbell's decision to exceed his judicial powers appears to have been a considered judgment. Spry may have been technically guilty of murder, but both the bench and the governor chose to treat her case pragmatically and avoid the long delay that a reprieve would entail. The flexibility of the pardon process also allowed governors to refer problematic cases to the British government. At the 1790 court of oyer and terminer, Cornelius Bryan, an Irish fishing servant, was tried for the murder of his master, Henry Brooks.33 The homicide had taken place while they were working aboard a banker sailing in Trepassey Bay. During the trial one of the crewmen gave eyewitness testimony of how Bryan had brutally murdered Brooks with a hatchet, thrown the body overboard, and fled to St Pierre. The trial jury found him guilty, the court condemned him, and the sentence stipulated that his body be hung in chains after the execution. The commissioners of oyer and terminer did not recommend a reprieve, leaving Governor Milbanke to decide Bryan's fate. Milbanke chose to let the law take its course, but he had doubts whether the murder had occurred within the jurisdiction of Newfoundland or on the high seas.34 If the crime had taken place more than three miles offshore, it would be within the jurisdiction of the British Admiralty, and Bryan would have to be re-tried in England before an Admiralty Court.35 Milbanke granted Bryan a reprieve and asked the British government to rule whether the case lay within the cognizance of the Newfoundland assizes.36 The government's lawyers reported that they were unable, on the basis of the trial transcript, to determine where the homicide had taken place. It is, in fact, curious that Governor Milbanke had neglected to order the local justices of the peace to investigate precisely where the offence had been committed before writing to the secretary of state. Judging from the trial transcript, it is highly unlikely that the banker had been more than a few miles off the Newfoundland coast. Henry Dundas, the home secretary, directed Milbanke to conduct an inquiry to ascertain the location of the offence. Dundas advised that if it had occurred within the island's jurisdiction, 'the nature of

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this man's case seems to His Majesty to be such as to make it necessary for the sake of Publick Justice that his sentence should be carried into immediate execution.'37 If it had taken place on the high seas, then the prisoner and the witnesses were to be brought to England as soon as possible. Though it followed the profile of the pardon process, the reprieve of Bryan did not function as an act of mercy. He was allowed to live another year merely because Governor Milbanke wanted to solicit guidance from the British government.38 Armed with unequivocal instructions, Milbanke ordered Chief Justice Reeves to prepare a report on the Bryan case. Reeves viewed the jurisdictional problem to be a relatively minor concern: he declared that he could find no evidence that the offence had taken place on the high seas.39 More important was the 'wish of the people of the place/ as well as a recent grand jury presentment, both of which called for Bryan's execution. He recommended that the law take its course, and Bryan was hanged in October 1791.40 THE SELECTION OF OFFENDERS

Why were some offenders pardoned while others were punished? As in Georgian England and British colonies such as Nova Scotia, postconviction decision making was highly discretionary.41 'Discretion' in this sense refers to the deliberate calibration of punishment by judges and government officials; it does not denote the type of crude bigotry portrayed, for example, in V.A.C. Gatrell's monograph. For Gatrell, the administration of law was little more than a corrupt sham marked by mayhem in the courtroom and mediocrity on the bench.42 The evidence from the court proceedings in Newfoundland confirm the earlier, more sophisticated model proposed by E.P. Thompson. According to Thompson, criminal law was not a blunt weapon of class oppression but rather a finely tuned instrument, rooted in social relations yet operated in large measure within the confines of the rule of law.43 Post-conviction deliberations were particularly critical in Newfoundland because of the limited time between the end of the assizes and the departure of the governor. During this brief period, which rarely exceeded three weeks, governors had not only to decide which offenders to reprieve, pardon, and punish; they also had to make all of the necessary practical arrangements, such as building a gallows, and to oversee the execution of the sentences. In the meantime, the convoy of fishing ships had to be organized and the naval squadron provi-

198 The Rule of the Admirals

sioned for the Atlantic crossing. It is not surprising that petitions for clemency never figured prominently. Interested parties - especially those living in the outports - would have had little time to compile a petition. Prior to 1792, the governor received only one written request to pardon an offender. Governors acted decisively in most areas within their jurisdiction and their circumspection in handling cases of convicted felons appears on the surface to be at odds with the general tenor of the naval government. In the absence of an executive council to confer with, governors had to rely on the justices and, after 1779, the permanent civil secretary. The commissioners of oyer and terminer were empowered only to issue an advisory report and did not meet formally with the governor. Governors were therefore solely responsible for the decision of whether to hang an offender. The legal culture the governors brought with them from their experiences as career naval officers undoubtedly affected their attitudes towards punishing offenders. Compared to civilian courts, the rate of executions ordered by naval courts martial was remarkably lenient. Despite the wide range of capital offences enforceable under the Royal Navy's penal code, most executions were for murder or sodomy. Property offences and other serious crimes, such as desertion, rarely attracted the death penalty: three-quarters of those sentenced to death for desertion were pardoned. According to N.A.M. Rodger, officers showed a marked reluctance to hang sailors, preferring instead to use floggings where possible. Rodger argues that this legal culture formed 'an organic response to the nature of life at sea,' one which officers were unlikely to abandon in a familiar maritime environment such as Newfoundland.44 Extensive work by John Byrn on the Leeward Islands station confirms Rodger's findings.45 The trend towards leniency did not carry over to corporal punishments, which were a fixture of shipboard life.46 Left to decide the fate of an offender who would probably not be hanged in the Georgian navy, governors exercised caution. The use of pardons did not signify inaction or a lapse in authority. Mercy was a highly calculated tool used to reinforce the authority of the island's government. This is not to suggest any sort of Durkheimian model of punishment as the embodiment of society's moral order. In the first place, whose morality was at stake is entirely unclear, and Durkheim's holistic approach does not fit the island's highly stratified society. Whether that society was actually bound together or rent apart by the actions of the penal regime matters less than the fact that punishment and mercy were calculated to allay the fears of the governor,

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the magistrates, and the propertied interests they sought to protect.47 In a largely illiterate society such as eighteenth-century Newfoundland, mercy represented what Rhys Isaac has termed a cultural ritual for memorization, in the sense that it reaffirmed both the symbolic and the material social order through the invocation of the king's will and pleasure.48 For example, the ceremonial procession of the men pardoned for Keen's murder in 1754 formed a public statement that the only difference between those granted mercy and those on the scaffold was the governor's benevolence. Such potent messages were not restricted to causes celebres. In 1773, for example, Governor Shuldham commuted the death sentences of two men and one woman - all of whom had been convicted of theft - to seven-year terms of transportation.49 In the warrant to the high sheriff, Shuldham stipulated: 'you are to cause them to be carried under the gallows with halters about their necks, [and] this order to be read to them.'50 The spectacle of the scaffold was not restricted to actual hangings, therefore, but stood as a broader metaphor for justice.51 The decision of whom to hang and to pardon - and, as we will see, the fate of the corpses of executed offenders as well - belonged exclusively to the Crown. These choices hinged on the twin factors of the perception of the offence and the offender. The character of the offender and the threat the crime posed to the social order comprised the most important criteria: only if both were sufficiently serious - i.e., they had crossed the threshold of fear that separated an offender befitting mercy from one deserving execution - would the governor sign an execution warrant.52 Class played a central role in this selection process, but it alone cannot account for the specific ways in which the naval government dispensed mercy to individual offenders. The relationship of offenders to the means of production cannot be used as an axiomatic indicator of either their propensity to commit specific offences (whether as a form of proto-political protest or in defence of custom), or the type and rate of punishments imposed by the courts. Still, examples of this reductionist approach - most notably Peter Linebaugh's study of punishment in London - do not diminish the need to consider class as a crucial factor in decision making, in spite of attempts by John Langbein and others to paint all social history with the same brush.53 The majority of both the island's capital offenders and its overall adult population were indentured servants. Unless a servant had committed a crime directly against his or her master, the government had to rely upon essentially intraclass issues in its deliberations. In most cases the governor noted only

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that some favourable circumstances had come to his attention, prompting him to rule against allowing the law 'to take its course/ the euphemism for ordering an offender to be executed. WOMEN AND CRIMINAL JUSTICE

As in Georgian England, women in Newfoundland were significantly more likely to be granted mercy than men. John Beattie argues that the reluctance to subject women to the full rigor of the law was not the result of chivalry in any real sense, but rather a reflection of the fact that women posed a less serious threat than men.54 Beattie's model is borne out in the evidence for Newfoundland, where women comprised a tenth of the total accused tried at the assizes. Women seem to have been treated less harshly by the island's courts than they were in contemporary Halifax, though the number of cases is too small to draw any firm conclusions.55 Of the nine women brought to trial in Newfoundland, six were found guilty, five were sentenced to death, and one was hanged.56 Only two women received secondary punishments: Margaret Penny and Winnifred Ryan (alias Burk) were both sentenced to seven-year terms of transportation; Penny had been sentenced for receiving stolen goods in 1751, while Ryan had been condemned for theft and given a conditional pardon in 1773. No woman was ever sentenced to public whipping, either at the assizes or the district courts, though many informal punishments were likely carried out in local communities. By contrast, in both Georgian England and Nova Scotia, women convicted of petty larceny were whipped. In Halifax the whipping of women was no longer public by the 1780s but was still inflicted as late as 1791. In London the corporal punishment of women was not uncommon but declined markedly in the late eighteenth century.57 References to women being punished occasionally appear in private records. For example, in his personal diary for March 1762, Benjamin Lester, one of the Trinity justices of the peace, noted an incident that never appeared in any court record: Tine mild Weather ... James Terril & Jonah Moores came over to complain of their Men, & Harvey's Wife. I ordered them to Duck her.'58 It is entirely unknown how common such punishments were - there are no other known instances of women being ducked underwater as punishment - since they were unlikely to be considered serious enough to warrant entry in a justice's minute book.59 Lester's remarks provide a glimpse of the unwritten customs that operated alongside English criminal law but were not formally rec-

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ognized by the courts. The extent to which magistrates employed such customary laws cannot be estimated with any accuracy. In some instances women did commit transgressions that attracted the government's attention. In 1757 Eleanor Moody was banished from the island for being a nuisance and, at Fogo in 1771, Mary Bond was admonished for being a disorderly woman.60 Women who committed such moral offences were, as Jim Phillips argues, seen as doubly deviant, in the sense that they had contravened both the criminal law and their prescribed gender role.61 It is not surprising that Eleanor Power was the only women ever executed: she had joined an all-male gang with her husband and dressed in men's clothing the night of Keen's murder. Similarly, both Margaret Penny and Winnifred Ryan had committed their offences with male accomplices, thereby drawing themselves into the public sphere dominated by men. The underlying reason why females comprised such a small proportion of offenders punished at the assizes was the dearth of women in eighteenth-century Newfoundland. According to Grant Head, the island was unusual among all British North American societies for its abnormally low percentage of women.62 Dominated by young, single men, the migratory fishery produced little demand for women's labour: families did not become the standard social unit until permanent, year-round settlement grew significantly in the late eighteenth century.63 Prior to 1750, women made up roughly 13 per cent of the total population; that proportion grew to 17 per cent in 1775 and to 28 per cent by 1795. The increase in the number of women, most of whom were Catholics from the Waterford area, sparked fears that the island's Irish servants would become an entrenched, cohesive community that would threaten the interests of the Protestant elite. In response, the government ordered in 1764 that no shipping master could land an Irishwoman without first providing security for her good behaviour. And in 1777 the governor issued a proclamation forbidding any woman to be brought from Ireland to Newfoundland, but such efforts at social regulation proved largely ineffective.64 The pressure on the courts to provide protection against male violence increased as the female population expanded. For example, in 1773 Bridget Kent petitioned Governor Shuldham for redress for the ill treatment she had received during her passage from Ireland. Four years later Governor Montagu revoked the liquor licence of John Phillips, a publican, for beating a black servant-girl.65 The presence of women in the fishery also prompted moves towards greater regula-

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Table 6.2 Division of resident population by gender and social status, 1725-95 Year

Masters

Men servants

Mistresses

Total percentage Women servants of women

1725 1750 1775 1795

324 850 1396 2042

1764 5413 5722 5021

235 609 990 1896

68 310 512 792

13 13 17 28

Source: Ryan, Newfoundland Consolidated Census Returns, 27, 46, 67.

tion: in 1780 Governor Edwards sent a proclamation to the justices in each district condemning the incidence of 'rude behaviour to women of boat's crews employed in jigging squid/66 But there was no substantive campaign to institute moral regulation formally until the emergence of a bourgeois public sphere and a local reform movement after 1815.67 Two generations after Irishwomen had been banned from coming to Newfoundland, Patrick Morris, a prominent Irish Catholic reformer, cited the crucial role women played in keeping the fishery productive and its men virtuous.68 Prior to the 1790s women remained a minor juridical and penal concern simply because they did not yet occupy a large segment of the island's society. Women who were convicted of capital offences encountered contradictory responses from the jury and the bench. As we saw with the case of Sarah Spry, a guilty verdict could be effectively overturned during the pardon process; for the magistracy and the governor, moral transgressions did not constitute sufficient grounds on which to execute a woman. This disparity between the trial and post-conviction stages is clearly evident in the case of Mary Power.69 Along with Robert Fling, who was rumored to be her lover, Power was charged with murdering her husband, Maurice, at Trinity in May 1772. During the funeral of the victim the rector noticed that the corpse had marks of violence on it; he promptly stopped the service and notified D'Ewes Coke, who was then working as a surgeon in Trinity.70 Coke performed a post-mortem, convened a jury to view the body, and sent a full report to Governor Shuldham. From the outset of the criminal investigation, Mary Power's scandalous reputation figured prominently. Without eye witnesses, authorities had to rely upon circumstantial evidence and the character of the accused and her accomplice. Coke's report summarized the case: 'First,

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the wife having been known to have had great differences with him and to have left him night after night, and gone with a gallant to lodge at other houses, declaring she would no longer live with him (the husband).' Coke also noted that Power's lover had been seen about her house early on the day that the death was reported and, when told that she had murdered her husband, he allegedly remarked he 'did not wonder at it.'71 Medical evidence was not introduced at the trial apparently unable to make the voyage from Trinity to St John's, Coke and the jurors did not attend the assizes - and the prosecution's case hinged on Power's disreputable behaviour. The jury found her guilty but acquitted Fling, who was deported from Newfoundland for his part in the affair. Power was suspected of being pregnant, however, and the court ordered a jury of women to conduct a physical examination. This process was essentially the same as that practised in England, where a jury of matrons would examine a woman who had 'pleaded her belly.'72 Three days after being sentenced to death, Mary Power was examined by three women, sworn to serve as a jury, who gave their verdict at the courthouse. According to their report, Power was about five months pregnant and, consequently, the commissioners of oyer and terminer recommended that the governor grant her a reprieve.73 In theory, pregnant women were to be confined in gaol and executed after giving birth; in practice, few women were ever hanged after the termination of their pregnancy.74 Given the rate of pardons granted in Newfoundland, it is highly unlikely that Power would have been executed once it was known she was pregnant. When Governor Shuldham issued a reprieve, he cited not only Power's pregnancy, but also the apparent lack of evidence of her guilt. He noted that the commissioners of oyer and terminer had reported that there existed no positive proof that Power had committed the murder.75 It is uncertain whether the commissioners had prepared a separate written report or had met with the governor personally, but evidence points to the latter. Above their recommendation to Governor Shuldham is a second statement, which was crossed out in the original transcript. It repeats most of the final recommendation but also refers to the lack of sufficient evidence against the accused; the trial transcript indicates that the evidence against Power was indeed largely circumstantial. I would speculate that the commissioners deleted this comment from the official records because they deemed it more prudent to present such concerns in person.76 Although no records or minutes exist of any governor convening a meeting with the commissioners of

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oyer and terminer, I suspect that they informally discussed the fate of those sentenced to death at the assizes. In other words, the magistracy and the governor together may have acted in a manner similar to an executive council.77 CRIMINAL TRIAL AND THE DETERMINATION OF P U N I S H M E N T

The concerns raised over Power's culpability bear on the broader question of the link between trial and punishment. It is difficult to discern a direct correlation between the conduct of a criminal trial and the commissioners' report in most cases, but illuminating references occasionally surface. After the 1785 assizes, the commissioners suggested that James Phillips, who had been convicted of theft, should not be allowed to hang. No transcript of the trial appears to have been compiled; the only surviving reference to Phillips's case is the judges' report. Yet it sheds valuable light on the overlapping and occasionally contentious jurisdictions of the trial jury (questions of fact), the court (questions of law), and the judges and the governor (questions of justice). Discarding the standard formula, the commissioners tacitly acknowledged the injustice of Phillips's death sentence: 'It is our duty to recommend to your Excellency's clemency James Phillips now under sentence of Death who from all the circumstances of his case appears less guilty in our opinion than the person admitted in King's Evidence - Your Excellency will also please to observe by our return, that he is strongly recommended by the Jury for mercy.'78 Three days later Governor Campbell granted Phillips a free pardon. Convicted of theft from a merchant's store, Phillips likely would have been punished with at least a dozen lashes if he had been tried for petty larceny in a district court. Because the judiciary and the governor were unwilling to execute offenders for property offences, those tried locally before justices of the peace or naval surrogates faced a comparatively harsher penal regime. Where complete court records are available for study, evidence confirms that post-sentencing deliberations were in some instances an extension of the debates that dominated the criminal trial. The case of John Delaney, who was sentenced to death at the 1786 assizes, indicates the degree to which the dynamics of the courtroom could affect the pardon process. Charged with fatally beating his wife, who died three weeks after the assault, Delaney was tried for murder largely on the basis of medical evidence and character witnesses.79 No one had

The Patterns of Criminal Justice 205

seen the accused strike his wife the night of the alleged attack and the prosecution relied heavily on the post-mortem report. Testimony by a surgeon who had treated the victim - and by those who alleged that, on her deathbed, she had blamed her husband - also figured prominently during the trial. The admittance of dying declarations by victims was an accepted practice both in England and Newfoundland. As recently as 1780 such testimony had been allowed in a murder trial, but in the Delaney case the commissioners of oyer and terminer were noticeably stricter in their interpretation of what constituted legal evidence.80 The judges gave an unusually direct charge to the trial jury at the 1786 assizes: they raised doubts whether the victim had died of illness, dismissed most of the testimony as mere hearsay, and concluded that the prosecution had produced no evidence that Delaney had actually beaten his wife 'in such a manner as was likely to cause her death.' Faced with what amounted to a direct command from the bench, the jurors asked the court to clarify the status of the hearsay evidence: Q: Are we to lay any particular stress upon the declaration of the deceased when upon her death bed? A: You are to regard that declaration no further than it agrees with the rest of the evidence and is substantiated by other proof; on the other hand great attention is due to that part of the prisoner's proof which tends to contradict and set aside the force of that declaration. Q: Is the aforesaid declaration of the deceased to be considered as legal evidence? A: No; of itself it is not legal evidence, and ought to have no weight with you further than you find it supported with other sufficient proof.81

Exercising remarkable independence, the jury found Delaney guilty of murder.82 In their report to the governor, the judges denounced the verdict. Referring to the court transcript, they returned to the issue they had vainly pursued during the trial: 'That this man did actually beat his wife at the time specified in his indictment and that her death was occasioned by such beating, are points which have not been established by positive and object evidence ... but the general tenor of his conduct towards his wife and her declaration when on her death bed have no doubt had great weight with the Jury.'83 This time their efforts had the desired effect. Governor Elliot reprieved Delaney and urged the secretary of state to arrange for a pardon: 'And as many circumstances appear upon the

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minutes of his trial (particularly in the evidence of Peter Le Breton [the surgeon who treated the deceased] and Patrick Phelan [a priest who ministered to the victim], as well as in the judge's charge to the Jury, and also in their letter to me annexed to the proceedings) which induce me to think that the poor woman fell a victim rather to improper medical treatment than to the ill usage she received from her husband. I beg leave in the most earnest manner to recommend him as a fit object of His Majesty's mercy.'84 Though highly irregular, Elliot's gratuitous speculation about Le Breton's medical expertise went unremarked by the British government. Delaney was given a free pardon when the governor returned to Newfoundland in July 1787 and supplied with a full account of the property that had been attached upon his commitment for trial.85 In effect, the commissioners of oyer and terminer had managed to undo what they deemed to be an improper verdict. Yet even in this case, in which specific concerns over evidence seemed to have guided the decision-making process, the twin issues of the perceived threat of the offence and the offender remained the decisive variables. In the first instance, the fact that Delaney was convicted of beating his wife shaped how the homicide was perceived from the outset. Violence against women appears not to have been viewed as a type of crime serious enough to warrant execution or any of the secondary punishments ordered by the assize court.86 Seven men were tried at the St John's assizes for crimes against women (two for murder and five for rape), five of whom were sentenced to death. Only one offender was ever punished - John Stackebald was executed for rape in 1762 - but, as we will see, the governor ordered Stackebald to be hanged for reasons that had little to do with the crime for which he was indicted. The fact that three men were convicted of rape indicates that sympathy among jurors towards female victims may not have been atypical, though it may also have reflected the fact that two of the three offenders were Irish labourers.87 Equally important in the apportionment of punishment was the assessment of the character of the victim and offender. It is impossible to separate the issue of the principals' reputation from the perceived seriousness of their offence: the question of who had committed a crime against whom determined in large measure how a specific offence was seen by jurors, the bench, and the governor. The impact of character evidence recorded during a criminal trial extended beyond the courtroom. When Governor Elliot referred to the defence witnesses' testimony and the charge to the jury in the Delaney case, he was drawing the secretary

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of state's attention to material which bore directly on the character of the accused and his deceased wife. Elliot singled out the testimony of Patrick Phelan, a Catholic priest who had asserted that not only did Ann Delaney fail to report the alleged assault committed by her husband, she was also 'jealous of her husband the prisoner, thinking he had attachments to other women.' The judges' instruction to the jury reinforced this perception: '[T]he prisoner in his defence has charged the deceased with being very foolish or flighty (as he termed it) and says that she frequently without any provocation would call out murder and that she did so when in bed on the third of April last; it is in proof that she called out murder that night, but no one has proved that she had any provocation for so doing; the prisoner's evidence have made it appear that she frequently in the day time would run out into the path and cry murder, when the prisoner was within doors, or at a distance from her; this flighty conduct appears to have arose from jealousy.'88 John Delaney testified that his wife had exhibited fits of peevishness, suffered from ill health, and was feeble-minded. Such claims failed to raise sufficient doubts in the minds of the jurors but coloured the governor's view of the case. The judges' reference to the defence marked a highly unusual step. No other surviving charge to a trial jury contains such an implicit endorsement of the testimony of an accused felon. The court's treatment of John Delaney's testimony signalled that he was a creditable witness and had a trustworthy character. Although Delaney was an Irish Roman Catholic, he occupied a respectable rung of the island's social strata as a local shopkeeper. Well aware of the potential advantage his reputation offered to his defence, Delaney had taken the opportunity to cross-examine the first prosecution witness: Q: A: Q: A: Q: A: Q:

Did you hear me say I would kill my wife? I heard you say you would do for her. Where was 1 then? In your house. Who sent for my son? Doctor Breton. Was it after you heard the deceased cry murder that you saw her go to Mr. Thistle's? A: It was. Q: What do you know concerning my character? A: I always found you fair and honest in your dealings.89

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This brought Delaney's character to the court's attention, linking his reputation to the material facts of the case. He mounted a formidable defence and called several witnesses, thereby distinguishing himself from the typical offender. The majority of those tried at the assizes were fishing servants - designated labourer in the standard indictment format - who said little or nothing in their defence.90 Delaney was clearly not part of this class: he did not work with his hands and could speak fluent English; some defendants could speak only Irish. In short, he was the type of offender who posed the least threat to the established social order and had committed an offence against a social inferior. S O C I A L STATUS A N D J U D I C I A L D I S C R E T I O N

Class formed the basis on which an offender's character was judged. Only those who were not servants could exhibit pretensions to any semblance of gentility in the island's fishing society. Honest and faithful servants were doubtless esteemed, but their legal status was tied closely to their masters. Court minutes typically identified fishermen by referring to their master; in some instances, the clerk did not even bother to record the servants' names. Under Palliser's Act, labourers without a shipping paper were considered vagrants.91 By contrast, from the rank of master upwards - this group included planters, surgeons, shopkeepers, clerks, mercantile agents, and merchants - defendants appeared in court as independent persons to whom the court extended ample opportunity to mount a defence. These men could carry poor reputations, but they entered the courtroom as a caste indisputably superior to the common fisherman.92 It is of course anachronistic to speak of class in the strict sense of the term, and it remains debatable whether capitalist forms of exploitation existed in earlymodern maritime societies. However, the wide social gap between the indentured servants who worked in the fishery and the mercantile clique who controlled the fishery's capital produced an inherent inequality in material and cultural power that carried over into the courtroom. Despite the debates over whether proletarianization could precede industrialization, the fundamental imbalance in social power in Newfoundland cannot be denied nor, as we shall see, can it be doubted that masters used the island's legal system to discipline workers through state-sanctioned floggings.93 Analysis of trials for capital offences reveals the class-based nature

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of criminal justice. Eleven of the eighty-six defendants can be positively identified as having a status above that of labourer. Only one of them was charged with a property offence: eight indictments were for murder, one for assault and battery, and one for rescuing prisoners from gaol. Of those found guilty, four were fined, three were sentenced to death, and one offender was given a free discharge. The fines were levied for offences - larceny, manslaughter, assault, and rescuing prisoners - for which fishing servants were whipped or branded. None of the eleven were ever whipped or received any other type of corporal punishment. Of those sentenced to death, two were granted free pardons, while one offender, William Martin, was hanged for murdering a servant in 1786. Martin was an exception, however, because he was a suspected lunatic and had lost whatever reputation he once possessed. In court he mounted a poor defense, called no character witnesses, and was obviously feared by the villagers who testified against him. Social class was a principal but not determinative factor in the apportionment of punishment. In 1779, for example, John Malloney, a prominent Harbour Grace merchant, was charged with assaulting and wounding William Lilley, the local justice of the peace. Witnesses for the prosecution reported that Malloney had threatened to murder his wife, brandished a cutlass while in a public street, and cut Lilley in the face when he tried to quell the fracas. Malloney called only one defence witness, who testified that he had heard Lilley say, 'you are not a gentleman/ to which Malloney allegedly replied, 'I am as good a gentleman as yourself.'95 Malloney was convicted of assault and battery and fined £180, the highest amount levied by a Newfoundland criminal court. Perhaps the wealthiest person ever tried at the assizes, Malloney could not avoid punishment, in part because he had assaulted a highly respected member of Harbour Grace society. This intra-class offence could have been settled privately or through binding arbitration, but Malloney's conduct had seriously eroded his social standing. By neglecting to offer a vigorous defence he had significantly diminished the likelihood of receiving a lesser sentence. Character was not a fixed commodity but had to be demonstrated in court. Here gentlemen enjoyed a distinct advantage: they could draw on their education and cultural experiences to prepare a superior defence.96 For example, Samuel Disney, an Irish planter charged with the murder of his servant, took great pains to offer an eloquent statement on his behalf. Disney's address at the 1789 assizes was a model of courtroom oratory:

Table 6.3 Sample of defendants tried at the assizes Year

Defendant

Status

Offence

Verdict

Sentence

1751 1751 1774 1775 1777 1779 1779 1780 1786 1786 1789

Massey Pike Scott Cameron Hawkins Malloney Crew Cook Martin Delaney Disney

esquire planter agent esquire army officer merchant agent planter planter shopkeeper planter

rescue of prisoners larceny murder murder murder assault & battery murder murder murder murder murder

guilty guilty not guilty guilty: murder not guilty guilty not guilty guilty: manslaughter guilty: murder guilty: murder guilty: manslaughter

fine: £10 fine: £60

Source: See Notes on Primary Sources Sample: All defendants above the social status of labourer/servant.94

death

Pardon

yes: set free

fine: £180 fine: £5 death death discharge: unconditional

no: hanged yes: set free

The Patterns of Criminal Justice 211 [He] said he would rest his defence on the evidence now before the Court; Adding that he has been taught to consider his house as his castle, sacred for the defence, protection and safety of his person: That knowing that the deceased had got in his hands a loaded gun belonging to him the prisoner, and being well acquainted with the violence of his temper, he the prisoner did not hesitate to believe that he would carry his alarming threatenings into immediate execution, if not effectually prevented: That when he saw the deceased, after bursting open the door, about to enter the room with a gun in his hands ready to be fired off, he considered that no time was to be lost in providing for his own safety: That the remembrance of this action would all his lifetime be, in the utmost degree, uneasy and painful to him: But that he left it to the Court and Jury to consider whether the truly dangerous and alarming situation he then stood in did not fully justify him in obeying the dictates of the first law of nature by taking the life of his assailant for the preservation of his own.97

Disney was found guilty of manslaughter and discharged without any fine or penal sanction. While a wide range of factors undoubtedly influenced the judges' decision, Disney's defence was critically important. Having acknowledged shooting the victim, he had to persuade the jury that he had acted in self-defence. Defendants were not passive agents in the construction of character. Respectable men could invoke their social reputation, providing the bench with a powerful tool with which to argue for mercy. The case of Alexander Cameron, convicted in 1775 for the beating death of his wife, witnessed the most blatant use of an offender's status as a rationale for granting a pardon. In court Cameron had maligned his deceased wife as a drunken menace and then turned to his main point: he 'begged that his former character might be considered for the goodness of which he appealed to several gentlemen then in Court to whom he had been well known for many years and who gave him the character of a very honest industrious and inoffensive man.'98 In their report to the governor, the commissioners of oyer and terminer asserted that Cameron had exhibited no real intention to commit murder. No one, including Cameron himself, had testified to that effect, but it enabled the judges to undermine the jury's verdict. Having raised doubts over the conviction, they highlighted the 'well known good character the said Alexander Cameron always had before that unhappy affair.'99 Governor Duff repeated these assertions in his report to the secretary of state, and Cameron received a free pardon.100

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The assessment of character was not restricted to determining whether an offender had a respectable reputation. At the other end of the social spectrum stood those whose very lack of social status attracted paternalistic consideration from the court. These offenders did not pose a major threat to the local community: they warranted mercy because special circumstances - such as youth, ethnicity, or being a firsttime offender - mitigated their culpability.101 Such discretion figured prominently in several of the capital cases under study. In 1784 Thomas Adams, a black servant-boy, was sentenced to death for theft; he had confessed to stealing goods worth five pounds from a merchant's storehouse. The commissioners of oyer and terminer noted that Adams appeared to be 'sensible of the heinousness of the crime for which he was indicted, and had made all the restitution in his power by delivering up the goods.' In this case, Adams's deficit of social standing actually worked in his favour. In their report to the governor, the judges stated that 'as he is a poor young negro boy, who had not the benefit of a Christian education and this being his first offence so far as is known to the Court, We humbly recommend him to your Excellency to mitigate or alter his punishment so that his life may be spared.'102 Governor Campbell granted Adams a free pardon.103 The following year the court faced a different dilemma. James Cunningham, sentenced to death for forgery, had exhibited signs of insanity. After conducting an investigation, the judges concluded that he was a lunatic and thereby not criminally responsible. Equally important, unlike the case of William Martin, Cunningham had displayed no violent tendencies. Following the advice of the assize bench, the governor agreed to issue a free pardon.104 PUBLIC H A N G I N G S AT ST J O H N ' S

This section examines the cases where the government chose not to extend mercy. It explores the role of executions in the broader patterns of governance, focusing specifically on the relationship between punishment and the island's sectarian divisions. The eleven hangings that took place between 1750 and 1791 followed the model of capital punishment in Georgian England.105 They were all public events, designed to achieve maximum exposure to the local community. The offenders were all hanged on a temporary scaffold; evidence suggests that most executions took place on the highland overlooking the town, near Fort Townsend.106 The hangings served to exact retribution on the bodies of the condemned and to deter others from committing offences through the terror of the gallows.

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Governors personally decreed how the hangings were to be carried out. After the assize session had ended, the governor signed each execution warrant sent to the high sheriff.107 The order directed the sheriff to take the prisoners under his charge at a specific time and convey them in public procession to the gallows. To ensure that as many people as possible attended the hangings, all of the executions took place between ten in the morning and noon. The importance of this juristic ritual is evident in the warrant for the first executions in 1754: 'at twelve o'clock this noon you are to cause the said Edmund McGuire and Mathew Halluran to be hanged by their necks on the gibbet erected on the wharf of Mr. Wlm. Keen until they are dead and then their bodys to be taken down and hung in chains on the place appointed for that purpose, and for so doing this shall be your sufficient warrant.'108 In most cases a party of soldiers attended the execution, acting as a security cordon between the crowd and the gallows, and providing yet another symbolic reminder of the government's presence.109 There is only one contemporary account of a hanging in the eighteenth century. In 1794 Lieutenant Richard Lawry, an officer aboard HMS Boston, was murdered while leading a press gang in St John's. Aaron Thomas, who served as an able seaman in the Boston, kept a journal describing the incident and the execution of the two men condemned for the murder. Thomas was in the crowd that attended the hangings, which took place two days after the assize session ended. His first impression was of the hangman: 'An Executioner is so detested in this Country that were he known he would entail disgrace on his posterity. The person who filled this office to the murderers of Mr Lawry did his business in disguise. He wore a wig made of black sheep's wool which covered his head and shoulders, he had a mask on, and was covered with a large long cloak.'110 He then turned to the condemned men: The two culprits walked from the Gaol to the fatal spot. Each wore on his head a kind of bonnet or turban made of fine linen, which contained three or four yards at least. The hangman, malefactors and priest (for they were Roman Catholic) walked in a group and were surrounded by the military, who formed a very strong guard.'111 Clergymen were likely present at every execution in order to minister to the offenders during their final hours. When five soldiers were ordered to be hanged at St John's in 1800, Bishop James Louis O'Donel described the difficult task faced by priests: T have a vast heap of trouble on my hands as I must be very soon preparing no small number of the Newfoundland Regiment for death/ 112 Hangings were an expression of the raw power of the colonial state.

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Thomas's account confirms the presence of several aspects of executions in Newfoundland that marked hangings in England. First, there was a significant threat of civil unrest and rebellion, directed against the execution generally and the hangman in particular.113 It was public, with the masses in attendance, and considerable drinking might have taken place. But hangings were not, as Thomas Laquer claims, plebeian carnivals where the crowd caroused in the face of the spectacle of death.114 On the contrary, Thomas gave the impression that the condemned men had prepared carefully for their deaths, and they doubtless had been assisted by friends and family. Executions were in many ways political as much as legal events. What message the crowd before the gallows took from the hanging is of course unknown, but its purpose was unequivocal in its clarity. V.A.C. Gatrell provides a thorough examination of the public emotions evoked by hangings: although Gatrell's study of the pardon process is flawed, his analysis of punishment becomes much more incisive the closer it gets to the gallows. He argues persuasively that historians should not approach the subject of state-sanctioned killing as if it were simply a normative function of a criminal justice system.115 The naval government's jurisdiction did not end with the offender hanging at the end of a rope. Those condemned to death had forfeited not only their lives but the fate of their bodies as well, over which the governor exerted total control.116 All of the men and women hanged in the eighteenth century were denied a Christian burial. Following the governors' instructions, the bodies were buried next to the gallows immediately after being taken down. Three offenders received a further indignity: their bodies were hanged in chains after they had been executed and displayed in gibbets erected in prominent places.117 By ordering these additional acts of retribution, governors were following practices well established in England.118 All three of the men hanged in chains had been convicted of murder, an offence that came under statutes designed to mete out punishments beyond that apportioned to other felons. In 1754 Governor Bonfoy informed London that two men had been hanged 'according to the late Act of Parliament provided in the case of Murder.'119 Bonfoy's initiatives did not end there, for he sent an order to all of the district magistrates: 'Whereas I think it for the good of this Island in General, that gallows should be erected in the several districts in order to deter frequent robberys that are committed by a parcee of villains who think they can do what they please with impunity. You are therefore hereby required and directed to cause gal-

The Patterns of Criminal Justice 215

lows to be erected in the most publick places in your several districts, and cause all such persons as are guilty of robbery, felony or the like crimes, to be sent round to this place, in order to take their tryals at the annual assizes held here, as I am determined to proceed against all such, with the utmost severity of the law.'120 Drawing on English legal culture, the island's governors relied upon the periodic use of terror to respond to fears of social unrest. I R I S H C A T H O L I C S A N D NAVAL G O V E R N M E N T

As in Georgian England, the Irish received a disproportionately harsh share of capital punishment.121 The trend in Newfoundland is unmistakably clear: of the eleven people hanged prior to 1792, all but one were Irish.122 To be sure, Irish Roman Catholics made up the majority of the people living in eighteenth-century Newfoundland, but they never comprised more than two-thirds of the total population. In 1764 Governor Palliser estimated that Catholics outnumbered Protestants by a three-to-one margin, but this marked the peak from which the proportion of the Irish in the overall population declined in the late eighteenth century. The relative severity with which the courts punished Irish capital offenders was rooted in the relationship between the island's Protestant mercantile elite and Catholic fishing servants. Irish Catholics constituted a distinct people in eighteenth-century Newfoundland. The vast majority of them came from an area concentrated around Waterford city and its environs.123 They were a relatively cohesive group with a shared culture, many of whom were bilingual or spoke only Irish; it was not uncommon for translators to be needed in court because witnesses could not understand English. Governors portrayed the Irish as a united community, despite the divisions between factions from Munster and Leinster.124 They reputedly had strong Jacobite sentiments and were repeatedly accused of being disloyal to the British Crown. Officials expressed grave fears that the Irish would support the French if the island were invaded. In 1750 Governor Drake warned that the Roman Catholics were openly disaffected to the government and that all of them refused to take the oaths of allegiance.125 Authorities suspected that the Irish community was rife with secret societies, such as the Whiteboys, who allegedly came to Newfoundland in the mideighteenth century.126 The murder of William Keen in 1754 confirmed these fears. It shook the local community: Keen had been the island's most prominent mag-

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The Rule of the Admirals

Table 6.4 Division of resident population by religious affiliation, 1754-1816

Year

Roman Catholics

Protestants

Total

Total percentage of Roman Catholics

1754 1768 1797 1803 1816

4,929 6,653 6,708 8,008 20,800

2,374 4,942 4,674 11,021 21,098

7,303 11,595 11,382 19,029 41,898

67 57 59 42 50

Source: Ryan, Newfoundland Consolidated Census Returns, 56,103.

istrate and the crime had all the markings of a well-planned conspiracy.127 Four of those tried for the murder were Irish soldiers in the St John's garrison; two others Catholics, Robert and Eleanor Power, were a married couple who played a leading role. A witness turned king's evidence recounted in court how the gang planned the robbery and had each kissed a prayer book to seal their compact. Edmund McGuire, the ringleader, had reputedly vowed that he would be 'revenged upon old Keen for something that had passed before/128 Armed with muskets, bayonets, and scythes, the group had rendezvoused at midnight the night of the murder, carefully posting armed lookouts before entering the house. MacGuire and Halluran then went upstairs to the bedroom and viciously attacked Keen when he awoke during the burglary. The homicide provoked a swift reaction from the island's judiciary. All of the defendants were convicted. Four of them - McGuire, Halluran, Robert Power, and Eleanor Power - were hanged before the governor returned to England. But these punishments did not assuage the anxieties of the residents and government at St John's. In the only published account of Newfoundland during this period, Griffith Williams reflected what was likely a commonly held view among the British in St John's: 'At this time great numbers of Irish Roman Catholics were in the Island as servants... they became the most outrageous set of people that ever lived: Robberies were committed almost every day in one place or other, the magistrates insulted in the execution of their office, and the Chief Justice [William Keen] murdered; many hundreds of the West of England people were afraid of going over, many of the Newfoundland men left the Island, and the Roman Catholics transported themselves by hundreds from Ireland.'129 The murder of Keen entered the island's cultural memory as a moral lesson of what could happen to the Protestant elite if the Irish were not held in check. The government's response to

The Patterns of Criminal Justice 217

the murder manifested the fears expressed by Williams. In 1755 Governor Richard Dorrill promulgated a local penal code against Roman Catholicism. These regulations went further than the English Penal Code.130 Dorrill strictly forbade the celebration of Mass, the penalties for which included arrest, fines, and house-burnings.131 He outlawed the hoisting of Irish flags, an offence also punishable by fines.132 These decrees were no idle threats: at a surrogate court held at Harbour Main in Conception Bay, two planters were convicted of allowing a priest to celebrate Mass on their property: they were fined (fifty and twenty pounds, respectively); their buildings were burned to the ground (homes, stages, and storerooms); and they were banished from the community. Four other men who confessed to being practising Roman Catholics were fined and banished from their homes.133 As Raymond Lahey and Cyril Byrne have noted, these measures were as much political as religious in nature. They reflected fears of an Irish rebellion and alliance with the French. Dorrill's administration in 1755 was draconian but so were other regimes in British territories and colonies at this time. The balanced account offered by Lahey and Byrne contradicts that of other historians, particularly Ralph Lounsbury, who is still cited as an authority on pre-1763 Newfoundland. Lounsbury claimed that Dorrill's actions were part of a hysterical reaction - the 'arbitrariness shows the danger of entrusting too much civil power to an officer of the navy' - but he fails both to place the island's government in its broader context and to note that such extreme measures were the exception, rather than the rule, of naval government in Newfoundland. 134 Although the Seven Years' War had not yet officially begun, armed conflict with France had already broken out. Governor Dorrill's actions in Newfoundland need to be placed in the context of the simmering European war and the 1745 Jacobite rebellion in Great Britain. Moreover, the enforcement of the Penal Code in Newfoundland coincided with the expulsion of the Acadians from Nova Scotia.135 As the Seven Years' War entered its final phase, the French captured St John's. In June 1762 a French regiment took over the town's government and its accompanying naval forces plundered English settlements all along the northeast coast. Liberated in September by a British expeditionary force, St John's was firmly under Governor Graves's control by October 1762.136 One of the first tasks Graves faced was to determine how to deal with alleged cases of Irish collaboration with the French. For his part, Griffith Williams had no doubt that the Irish were guilty of collusion with the enemy: 'The Irish were above six times the number of the West Country and Newfoundlanders: In short,

218 The Rule of the Admirals

they were in possession of above three quarters of the fish rooms and harbours of the Island, who consequently received the French with open arms ... during the time the French were in possession of the Island, the merchants and inhabitants suffered more cruelties from the Irish Roman Catholics, than they did from the declared enemy.'137 This view was echoed by Joseph Banks, who claimed that when St John's was captured, seven hundred Irishmen enlisted with the French.138 If Graves wanted to punish those who aided the French, he would have to arrange for trials in England because the court of oyer and terminer was prohibited from hearing cases of treason. Meanwhile, an opportunity arose to set a local example. When the St John's magistrates resumed their offices, Esther Merrifield swore a deposition that she had been raped during the French occupation. She accused John Stackebald, who was identified as an Irishman, of the crime, alleging that he and two others had sexually assaulted her on the road to Torbay. At the assizes held in November, Merrifield testified that she had not reported the crime earlier because the enemy was then in possession of St John's.139 Stackebald was convicted of rape and sentenced to death. The commissioners of oyer and terminer did not recommend a reprieve for Stackebald, who had attempted to escape by setting fire to the gaol. Collusion with the enemy appears to have been the crime for which he was ultimately hanged. The execution warrant noted that 'It further appearing from the affidavits of persons of undoubted testimony that the prisoner had been guilty of many treasonable acts during the time the French were in possession of this place, there seems to be no room to extend His Majesty's Royal Mercy to the unhappy person under sentence of Death nor any cause why the said sentence should not be carried into execution.'140 It is unclear exactly what weight was given to Stackebald's suspected collaboration - the only other incriminating factor was his arson attempt - but evidence points to treason as the primary reason behind the decision to execute Stackebald. The indictment for rape provided a way for the island's government to circumvent the prohibition against trying cases of treason at the assizes. Whether this was a calculated plan is uncertain, but Stackebald's hanging undoubtedly augmented the efforts to re-establish British sovereignty over St John's.141 In the aftermath of the war, tensions between the naval government and Irish Catholics eased somewhat. Governor Dorrill's penal code was not enforced: his successors adopted a modus vivendi which developed into limited toleration in 1779 and a formal grant of liberty of conscience in 1784.142 The status of Roman Catholicism remained insecure,

The Patterns of Criminal Justice 219

however, and conflict loomed beneath the political surface.143 A visiting American warned of impending trouble: 'From the present situation everything seems unfavourable to the security of that country. The late wretched peace has thrown a strong French garrison in the neighbourhood of the Island, and given them an exclusive right to take and cure fish on the whole west side of it... Added to this the Roman Catholics have this very year (1784) been indulged with leave to erect a mass house at St John's, and the officiating priest is an Irish gentleman who was chaplain last war to a French regiment, and it is probable, he is now on half pay from that Crown. The Danger arising from this indulgence is, that as more than two-thirds of the inhabitants are Irish (or descended from Irish parents), of course we may conjecture that most of them are Roman Catholics.'144 The outbreak of rioting in Ferryland in 1788, as well as an ongoing dispute over the activities of itinerant priests, strained relations between the Irish community and the magistracy.145 Father James Louis O'Donel, who later became the first Roman Catholic Bishop of Newfoundland, had established excellent relations with the naval government, but the appointment of Admiral Mark Milbanke as governor in 1789 marked a resurgence in anti-Catholic policy. Milbanke viewed tolerance of Catholicism as an encouragement to Irish servants to settle in Newfoundland after they had served out their contracts. He refused O'Donel's request to build a chapel in Ferryland and tried to restrict the growth of Irish settlement in Newfoundland.146 THE PERSISTENCE OF SECTARIANISM

Conflict between Roman Catholics and the Protestant elite continued well after 1792, when the supreme court replaced the court of oyer and terminer. The executions which Aaron Thomas witnessed in 1794 marked another attempt to use capital punishment to discipline the island's Irish community. Lieutenant Lawry had died after being attacked by a crowd trying to rescue Irish fishermen pressed into the navy. The homicide prompted a swift response: Governor Wallace personally directed the investigation, and a reward was offered for information on the crime. The bodies of the two Irishmen convicted of murder were, in accordance with the Murder Act, handed over to surgeons to be dissected and anatomized after being cut down from the gallows.147 Fears of social unrest preceded and followed the hangings. The grand jury asked Governor Wallace to delay the departure of the naval squadron until all those responsible for the murder were brought to justice. Citing the disorder in the town, the jurors affirmed that the

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continued presence of the Royal Navy was needed to maintain law and order, pointing out that the army garrison was too weak to quell serious outbreaks of unrest.148 The twin fears of rebellion by the Irish and invasion by the French intensified during the resumption of war. The governor declared martial law when an enemy fleet was sighted off the coast in 1796.149 And the United Irish Rising reverberated in Newfoundland, where a conspiracy among the soldiers garrisoned at St John's spread in 1799-1800. The local commander brutally crushed a botched rebellion in May 1800: five of the United Irishmen were court-martialled and hanged; three others were sent to Halifax for court martial, where they too were eventually executed. Fears that the mutiny was part of a wider conspiracy resonated among government officials and the mercantile elite, as the episode was cited as evidence of the need to maintain a strong naval government at St John's.150 Sectarian conflict far outlived the era of naval rule. As had happened in 1754 and 1762, the events of 1799-1800 shaped the island's cultural memory, and fugitives from the United Irish Rising were rumoured to have settled along the Southern Shore and in Conception Bay. As Terry Carlson's recent study demonstrates, sectarianism remained a major factor in penal administration throughout the nineteenth century.151 The grant of representative government in 1832 inaugurated a lengthy and bitter political battle between the Protestant elite (largely Conservatives), and the Catholic establishment (mostly Liberals).152 In the 1830s systemic violence erupted in Harbour Grace and Carbonear, where sectarian divisions became enmeshed with class conflict and political rivalry.153 When Phillip Henry Gosse, a prominent naturalist who emigrated in 1835, reflected on his earlier life in Newfoundland, he commented that there had been a 'habitual dread of the Irish as a class which was more oppressively felt than openly expressed.' Upon leaving the island, he had told his friends that 'when we got to Canada, we might climb to the top of the tallest tree in the forest and shout "Irishman!" at the top of our voice, without fear.'154 CONCLUSION Punishment was imbedded in the island's legal culture. Discretion marked each stage of the penal process, from sentencing to the gallows: judges and governors decided not only who to select for punishment, but also how to mete out mercy and retribution. The flexibility of the pardon process gave governors a wide range of options. They drew upon their experiences in the Royal Navy, where capital punishment

The Patterns of Criminal Justice 221

was treated as a last resort; but the high pardon rate in Newfoundland did not reflect judicial weakness, and mercy formed a powerful tool used to reinforce the legitimacy of the naval government. At bottom, public hangings represented expressions of social fear. The two factors that divided offenders granted pardons from those sent to the gallows were the perceived seriousness of the offence and the character of the offender. Those who did not pose a significant threat to the Protestant elite were prime candidates for mercy. The degree to which jurors and judges perceived an offender to be culpable depended in large measure on the social currency he or she possessed. Defendants who could present a respectable character in court and mount a serious defence were at a distinct advantage. The class-bound nature of this selection process is clearly evident in the sentences handed down at the assizes. Justice may well have been an integral part of English legal ideology, but it was often distorted by entrenched prejudices. Under the shadow of endemic anxieties over sedition and unrest, the trials and executions of Irish men and women in the eighteenth century became political events. From the perspective of the St John's establishment, the naval government was the bulwark of law and the protector of property. In assessing the role of sectarianism, a distinction must be made between the fear of insurrection and the actual threat posed by the Irish community. As John Mannion has pointed out, 'all bar a handful of the island's inhabitants were intrinsically loyal.'155 Mannion argues that not only was there no link between Catholicism and United Irish ideology, but the Irish in Newfoundland were not politically active. The alarm repeatedly expressed by magistrates and merchants, most of whom were English, bore little relation to the social reality of eighteenth-century Newfoundland. There is no evidence,' Mannion concludes, 'of serious sectarian conflict in Newfoundland in the 1790s.'156 But there is copious evidence that the St John's elite at times felt seriously threatened, and this perception engendered tangible results. In the final analysis, whether the fear of sedition was merely imaginary or the by-product of bigotry matters less than the real impact it had on the administration of law. Sectarian conflict was not a constant factor, but rather ebbed and flowed according to the anxieties generated by the major incidents which marked the era of naval government: the murder of William Keen in 1754, the capture of St John's in 1762, the murder of Lieutenant La wry in 1794, and the failed uprising of 1800. Naval governors responded vigorously to these events and the fears they generated by using the criminal law to exact retribution.

7

Enforcing the Social Order: Punishment in a Fishing Society

This chapter examines the use of noncapital punishments during the era of naval government. Two basic factors shaped the form and function of secondary punishments: the dearth of administrative infrastructure other than that provided by the Royal Navy; and the absence of an elected assembly, lawyers, and a local press. From 1750 to 1800 Newfoundland had no houses of correction or other places of incarceration beyond small gaols, which could be used only as short-term holding facilities, nor did it have a legislature in which to debate penal policy or to pass acts affecting criminal justice. The discussion that follows confronts two major questions: what modes of punishment emerged to replace the range of options available to courts in other British jurisdictions; and how was justice calibrated without a bourgeois public sphere in which to register fears of crime and attitudes towards punishment? Placed in the context of a society dominated by economic and sectarian tensions - in particular, the recurrent fear of unrest among Irish servants - these questions strike at the heart of understanding state formation in Newfoundland. Analysis of noncapital punishment in the island reveals a number of distinct patterns. First, like the island's judiciary generally, the penal system comprised a cooperative regime of naval and civil magistrates. While sitting as surrogate judges, naval officers acted in concert with the justices of the peace throughout the districts; in St John's, the commissioners of oyer and terminer handed down sentences as a group

Punishment in a Fishing Society 223

and worked closely with the naval governor. No discernable gap existed between naval and civilian authority. The Royal Navy formed the mainstay of the administration of law yet never became an independent judicial force. This high degree of collaboration between naval and civil magistrates fostered a legal culture in which there appeared to have been few disagreements, at least among the law officers and the island's elite, over punishments meted out at the district courts or annual assizes. In other words, naval and civil justice appeared to be essentially one and the same thing. Given the highly flexible nature of the Royal Navy's customary system of punishment, as well as its reliance on whippings and other relatively swift sanctions, its relative success in adapting to the island's conditions is not surprising. As in the Georgian navy, punishment in Newfoundland was highly discretionary, relying much more on customs, as well as the immediate dictates of specific incidents and offenders, than on statutory law. Magistrates employed a relatively narrow range of punishments suited to local conditions. At the assizes, the commissioners of oyer and terminer sentenced offenders to four types of noncapital punishments: transportation to America (prior to 1775) and banishment; burnings in the hand with a hot iron; public whippings by numbered lashes at a whipping post; and fines and court costs. At the district level, the surrogate courts and the sessions held by justices of the peace enjoyed a greater range of sentencing options: whippings, from a few lashes up to a hundred; banishment from the island or the local district; temporary imprisonment in irons or the stocks; a range of fines payable to the Crown or the district treasury; and other minor sanctions, such as a public apology. Imprisonment was ordered by the district magistrates on only four known occasions, while banishment and the stocks together made up less than a tenth of all sentences. Two punishments dominated the administration of law: fines, which comprised over twothirds of all sentences; and whippings, which were recorded in a fifth of the total cases. This does not indicate a paucity of choices but rather the fact that magistrates demonstrably favoured some punishments over others. The penal regime relied on fines and public whippings to discipline servants working in the fishery. Policing property was crucial during the early autumn, when the salt codfish was graded, loaded, and shipped to market; for the remainder of the year it was a secondary issue. The courts sought to make examples of individual offenders through the swift punishments of fines and whippings because it fit the

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needs of those in power: masters could ill afford to have their servants imprisoned and thus unable to work during the hectic fishing season. Whether deducted directly from wages or levied otherwise, fines kept servants indebted to their creditors and under firm control. The shame and humiliation inflicted by public whippings offered an effective method to reinforce paternalistic power. Justices of the peace and naval surrogates favoured whippings as a means of setting an example to deter servants from a range of actions that included not only theft but insolence or any other behaviour that challenged the master's authority. In short, secondary punishments were a central tool of local governance. Lastly, the structure of the penal regime remained remarkably consistent throughout the eighteenth century. Changes over time occurred primarily in response to particular waves of fear of crime and social unrest. No large-scale shifts in sentiment or penal practices arose until the emergence of a bourgeois public sphere and a reform movement after 1815. Nonetheless, local events - particularly the labour glut in Trinity in the late 1760s, and the Ferryland riot in 1788 - could provoke severe reactions that significantly affected the broader pattern of punishment. The fines levied to punish the Ferryland affray, for example, made up one-third of all recorded sentences given in the district courts, totalling slightly less than all other fines put together This chapter explores trends in noncapital punishments within the context of such incidents. By combining quantitative evidence with case studies, it attempts to provide a balanced overview of how criminal justice functioned under naval government. P A T T E R N S OF S E N T E N C E S AT THE A S S I Z E S

The number of offenders sentenced at the St John's assizes was relatively small. Compared to Georgian England and colonies such as Nova Scotia, the punishment of serious felonies was lenient. As we have seen, less than a third of those sentenced to death between 1750 and 1792 were actually executed, and no offender was ever hanged for a property offence.1 Faced with a small number of offences, the bench and the governor exercised a high degree of discretion. The assize court relied upon five types of secondary punishments to deal with a limited range of offences. The number of sentences handed down at the assizes was a reflection of both the high cost of prosecution and the preference to settle cases in the outport districts. The court of oyer and terminer was generally restricted to hearing only capital offences. If an

Punishment in a Fishing Society

225

Table 7.1 Noncapital punishment at the assizes, 1750-91 Punishment Offence Conceal /flight from murder Manslaughter Assault and wound Rape Forgery Larceny Receiving stolen goods Rescue prisoners Other* All offences

Transportation 4

9

Branding

Whipping

Banishment

1 1

3

Fine

1 1 3

4

1 1 14

5

3

2 2

7

Source: See Notes on Primary Sources * The court ordered two men found not guilty of murder to be banished from Newfoundland.

individual wanted to bring a prosecution, the chances of success were actually better in the district courts, where the bench did not sit under the shadow of the death penalty. Mounting a trial at the assizes entailed far greater expense and inconvenience for all those concerned. The average cost of prosecution was estimated to be around twenty pounds. The fees of the bench and other officials, who were each paid two guineas per trial, absorbed most of the charges, which had to be borne by the local community in some cases.2 The zeal with which the magistracy collected fines and court costs lends support to a contemporary claim that the high cost of mounting a prosecution discouraged victims from taking cases to the court of oyer and terminer.3 And the logistics of apprehending, incarcerating, and transporting an offender undoubtedly dissuaded many potential prosecutors and witnesses from coming forward. Well aware that these difficulties increased dramatically when the naval squadron left in the autumn, governors pushed the justices of the peace to send suspected felons to St John's before the end of summer and to settle any remaining cases themselves in petty sessions. Such attitudes were rarely voiced openly but represented part of an established legal culture. An order from Governor Duff in 1775, directed to three recently appointed justices of the peace in Trinity, was one of the

226 The Rule of the Admirals

few candid expressions of the pragmatic view held by the government. In October the magistrates had sent two suspects to St John's to be tried for grand larceny at the court of oyer and terminer. Arrested for stealing a small quantity of fish oil, the men had been shipped from Trinity along with the depositions and other supporting documents. After considering the merits of the case, Duff rebuked the justices for sending the men to St John's after the termination of the annual assizes. Pointing out that any suspected felon would have to be imprisoned until the assize session the following year, he affirmed that he was 'much surprised' that magistrates would put the public to such an unnecessary expense. Duff put the men aboard a vessel bound for Trinity and ordered the magistrates to prosecute them locally, 'as a bench of Justices ought to do, I mean as committing a petit larceny/ that is, theft under a shilling.4 Governors preferred to limit the assizes to serious felonies, leaving the bulk of judicial business to the district courts. Still, the assize court was the island's highest jurisdiction, and though few offenders were sentenced at St John's each autumn, the punishments meted out were important public events and carefully staged displays of the authority of the naval government. With the exception of transportation, the forms of punishment remained consistent throughout the eighteenth century. Transportation changed from a specific term in colonial America to a way of deporting offenders back to their country of origin. An offender convicted of larceny in 1752, for example, was sentenced to be transported to any of His Majesty's colonies in America for a seven-year term. Returning early from transportation was a capital offence.5 Six years later the court stipulated simply that an offender sentenced to transportation be sent to any country other than Great Britain.6 By the time the American War of Independence had broken out, judges clearly recognized the limitations of transportation and it assumed a function essentially the same as banishment. In 1780 the sentence of three men stated that they were to be deported back to Ireland, never to return to Newfoundland on pain of death.7 There are no extant accounts of how transportation was actually carried out. No records survive of the island's government making any contractual agreement with a local shipping master to take transported offenders; it is most likely that they were placed aboard the first available ship. The only instance in which the governor arranged for a vessel to be fitted as a convict ship occurred in 1789, when a shipload of Irish convicts had landed at Bay Bulls and Petty Harbour. But this case was exceptional: the measures taken by the magistracy dealt only with the immediate problem of deporting the convicts.8 As we shall see, when

Punishment in a Fishing Society 227

local authorities wanted to punish a large group of offenders, such as the Irish community in Ferryland, they chose punishments that netted hundreds of pounds for the public treasury. Fines represented as much a means of generating revenue as a criminal punishment. Because the government could raise taxes only through grand jury presentments and ad hoc committees convened to deal with a specific problem, there was frequently a shortage of funds available for large-scale public works. Planters and merchants clearly benefitted from this situation - they vehemently resisted attempts to impose regular public taxation for general purposes - but the magistrates saw it as an impediment to improving the island's judicial infrastructure. When the St John's justices petitioned the governor for a new district prison and courthouse in 1786, they raised the question of how to generate revenues in the absence of an elected assembly. They pointed out that they did not have access to the funds available to their counterparts in England, who could rely on the ample public moneys supplied by regular taxation. The justices argued that voluntary subscriptions remained inadequate because most settlers could not afford to contribute to the public purse. This left the magistracy dependant on fines and forfeitures, but these funds were sufficient only to defray the costs of maintaining the existing building.9 Governors had been aware of this problem for some time: in 1777 Governor Montagu informed London that the St John's gaol needed repairs and the funds collected from fines provided only enough for basic upkeep.10 Acceding to the magistrates' request, Governor Elliot asked the British government to pay for the construction of a new courthouse and gaol. He ordered plans to be drawn up and submitted a budget request for £1,079 but, not surprisingly, no funds were forthcoming from London.11 Sentencing patterns reflected the reliance on fines as a means of generating revenue. When John Malloney, a Conception Bay merchant, was fined for assaulting a justice of the peace, for example, the commissioners of oyer and terminer drew attention to the monetary needs of the court. Though the judges explicitly stipulated the different fines in their judgment, the charges were listed separately:12 Account of Mr. John Malloney's charges A Fine to the King for a breach of the Peace Damages to be paid to Mr. Lilley To five evidences at £1.1 day for four days each To charges of the court [the assize bench] [Total]

£50 £100 £21 £9.10.6 £180.10.6

228 The Rule of the Admirals

This list appears immediately after the sentence in the transcript and was not appended or copied down separately in the margin: I suspect that it was part of the sentence itself and may well have been read out in the courtroom. Malloney's fine was exceptionally high, but the average of the other charges was still nineteen pounds, a heavy sum for any planter or merchant and more than what the average servant could hope to earn in an entire fishing season. The net effect of these fines on the island's treasury was significant; the meticulous records kept by the high sheriff showed a current-account balance of £211 in 1781.13 Levies on offenders were not limited to such fines, however, for many had to pay court costs as well. Those sentenced to corporal punishment could therefore receive additional charges up to ten pounds. The court set the precedent for this combination of public degradation and financial indemnity at the first assize session held in 1750. Lawrence Kneeves, convicted of manslaughter, received a sentence that would be repeated four times throughout the eighteenth century. He was returned to gaol for the night, brought to the courthouse at noon the following day, and then publicly punished by having the letter R burned into his right hand with a hot iron; additionally, he forfeited all his goods and chattels and, before being released, he had to pay the court costs.14 Orders to pay legal fees were also used in conjunction with whippings. Of the three offenders whipped by order of the assize bench, two of them were civilians who had to pay fees to obtain their release from gaol after being flogged.15 The punishment of the third offender sentenced to be whipped was particularly severe. Nicholas Shortill, a soldier in the St John's garrison, was convicted of larceny and sentenced to 'three times thirty nine lashes,' after which he was turned over to Captain Pitts, his commanding officer. According to the court minutes, Pitts had promised to punish the defendant as a deserter as soon as the trial was over.16 Shortill's punishment involved the most lashes - 117, if the punishment was carried out in full - ever ordered in any Newfoundland court. Though extreme, the Shorthill case was similar to nearly all the whippings ordered in St John's and the outport districts. The sentence was fixed by numbered lashes inflicted at a whipping post and intended to be as public an event as possible. Its stipulation of thirtynine lashes per punishment conformed to customary law: the vast majority of orders to whip offenders stayed within the well-known biblical limit (cited in Deut. 25: 2-3 and 2 Cor. 11: 24), of forty lashes in

Punishment in a Fishing Society 229

a single punishment.17 Whippings were elaborate rituals of public humiliation designed to respond specifically to an offence; secondary punishments could also be added at the judges' discretion. For example, the case of Patrick Knowlan, who was prosecuted for larceny at the 1776 assizes, illustrates the power of the courts not only to tailor whippings to reflect the circumstances of the offence but also to impose supplementary sanctions that dramatically increased the punishment's severity. Convicted of stealing a counterpane from the shop of Peter Primm, a Protestant merchant, Knowlan was sentenced to three whippings of twenty lashes each on his bare back. With a halter tied around his neck, he received the first lashing at the common whipping post outside the courthouse; afterwards he was led along the public road, first to the front of Primm's store, where he was whipped again, and then to the fishing admiral's beach, where he endured the final twenty lashes. Knowlan's punishment did not end there, however, for he had to pay the court costs and was deported back to Ireland. Banished from Newfoundland, he was imprisoned until a passage could be secured; if he dared ever to return, he was to be whipped every Monday morning so long as he resided in St John's.18 Property offenders may have been executed at a lower rate in St John's than in London or Halifax, but the apparent trend towards leniency ended abruptly at the point of corporal punishment !9 CONTEXTS OF CORPORAL PUNISHMENT

In using noncapital punishments in this manner, judges in Newfoundland were following broader patterns of sentencing found throughout the British Empire. In the era before the rise of the penitentiary, corporal punishment occupied a central role in the penal continuum because judges needed effective sentencing options to use in the majority of cases that did not warrant execution. Throughout colonial America, local courts adopted a variety of measures designed to humiliate and chastize offenders. Kathryn Preyer argues that of all possible corporal punishments in noncapital offences, whipping was the method most frequently employed in every colony, with numbered lashings up to the biblical limit a common practice.20 According to Rhys Isaac, the Virginian practice of branding offenders granted benefit of clergy created a social stigma that became a ritual for cultural memorization, a punishment that seared the mentalite as well as the flesh.21 For early Upper Canada, Peter Oliver argues that judges preferred to use fines

230 The Rule of the Admirals

where possible at quarter sessions; at the assizes, they used banishment with regularity, reserving whippings as a punishment for larceny. Oliver's evidence suggests that whipping was an exceptionally feared punishment.22 In assessing the relative impact of corporal punishment, analysis cannot be based solely on quantitative evidence. In the first place, as David Neal points out, there is the question of how thoroughly punishments were carried out. Whipping until blood ran, which was a common practice in England, could entail as few as four or five strokes. Lashes inflicted at the cart's tail, as most were in Georgian England, depended in large part on how slowly the wagon proceeded along the streets.23 But in Newfoundland, colonies such as New South Wales, and throughout the Royal Navy, whipping was a more exact science. The details of when and where to whip, how many lashes to inflict, and what type of lash to use were stated with precision. The cat-o'nine-tails, with its twenty-seven knots, delivered a far more severe lashing than a simple whip. A legal punishment in the Royal Navy until 1881, the cat-o'-nine-tails was made up of nine pieces of cord, about half a yard in length, tied to a thick rope which served as the handle. Each of the nine cords had three tight knots spaced together near the striking end. A variant called the thieves' cat, used to punish larceny, contained even larger and harder knots.24 Neal argues that corporal punishment in New South Wales was actually harsher than that meted out on slave plantations in the American South, where a threatened slave rebellion had resulted in the abandonment of the cat-o'nine-tails in punishment. And whereas plantation owners usually felt obliged to keep within the biblical limit for whippings, punishment in New South Wales regularly exceeded forty lashes with the cat.25 Neal's attempt to compare punishment under slavery with that in a penal colony is less useful than his emphasis on seeing the quality of punishment on equal terms with quantity. Greg Dening takes aim at both issues in his study of the mutiny on HMS Bounty. Dening argues that the rate of whippings and the context of punishment must be considered equally, since there are limits to how far historians can take what he terms the 'cliometrics of violence.'26 He points out that simply calculating the frequency of whipping represents only the first stage in the more difficult task of measuring the actual impact of a given punishment in its social context. This point is particularly important to the study of early Newfoundland, because the court records indicate only a portion of the total punishments that actually took place. As we will see,

Punishment in a Fishing Society 231

the district minute books provide fascinating but fragmentary glimpses of the enforcement of local authority through the use of the lash. Even in St John's, where the assize proceedings provide a relatively complete account of sentences, not all punishments appear in the official court records. The commander of the St John's garrison complained in 1753 that one of his soldiers had been illegally incarcerated and whipped on the orders of a civil magistrate. The soldier had allegedly been imprisoned twenty days for stealing three potatoes; when no one appeared in court to testify against him, he was summarily whipped twenty-one lashes.27 Justice William Keen, who had ordered the arrest and punishment, made no memorandum of the incident. It is uncertain how common such incidents were, but evidence suggests that noncapital punishment was not contingent on securing a conviction at the assizes. For example, the commissioners of oyer and terminer petitioned Governor Shuldham in 1774 to deport a suspected felon whose bill of indictment had been returned ignoramus. Frustrated by the grand jury, the judges appealed that they had proceeded as far as their powers allowed, warning that such a dangerous offender should not be set free. Shuldham promised to take the necessary measures to deal with the man as soon as possible.28 In such cases the governor could arrange for troublemakers to be pressed into the Royal Navy, though officers would be reluctant to take on hardened criminals. If the offenders were experienced seamen, their chances of being sent aboard a warship increased considerably. In 1775 the commissioners of oyer and terminer asked Governor Duff to find a place for three offenders in his squadron. Their memorandum provides an excellent example of how easily informal punishments of servants could be arranged: 'William Gale, John Saunders, and John Hogan, the three men who were committed to gaol for bringing in the schooner George-Yard from the Banks contrary to the will and consent of the master, have been tried for the same and are sentenced to forfeit their wages and to serve His majesty.'29 Although the request was made by the commissioners of oyer and terminer, the three men had not been tried at the assizes. Guilty of breach of contract at worst, the men probably had been convicted by either the vice-admiralty court or two justices sitting in petty sessions. Doubtless glad to have three additional sailors who could be rated able seamen, Duff arranged for them to be received aboard HMS Romney. How many other fishermen shared a similar fate in the eighteenth century remains entirely unknown. There is remarkably little evidence of Newfoundland fishermen being pressed locally,

232 The Rule of the Admirals

and though many incidents no doubt went unreported, impressment never operated on the same scale in Newfoundland as it did in England and in colonies such as New York.30 Legal restrictions on impressment contributed to its infrequent use as a secondary punishment in Newfoundland. Under the 'Act for the Encouragement of the Trade to America/ passed in 1708, it was unlawful to impress mariners either ashore or from any vessel 'employed in any Part of America.'31 Jesse Lemisch has argued that this statute was largely ignored in practice, as warships pressed large numbers of seamen in American ports in the decades preceding the Revolutionary War.32 But the extensive accounts of violent conflicts between press gangs and sailors in American port cities contrasts markedly with Newfoundland, where there were no known complaints about impressment until the 1790s. Press gangs were far more active in English ports, where seamen bound for Newfoundland were most likely to be impressed.33 Prior to 1801 fishermen enjoyed somewhat better protection than other mariners, since one apprentice, one seaman, and one landsman in every seagoing fishing vessel were legally exempted from impressment; after 1801 anyone who worked full-time as a fisherman was protected.34 When Governor Graves needed to raise sailors to assist the expedition to recapture St John's in 1762, there is no evidence that he used a press gang; instead, he issued a proclamation offering the king's bounty to fishermen who joined a man-of-war, promising that they would be discharged when the campaign ended. The only known instance of an organized press gang operating in eighteenth-century Newfoundland occurred in 1794, when an officer was murdered while leading a detachment prowling for seamen in St John's.36 That same year a visiting sailor noted that local fishermen were anxious about the prospect of being pressed into the local squadron.37 And in 1795 a group of merchants petitioned the governor against the alleged employment of a hot press in St John's harbour.38 However, there is no evidence that press gangs operated on any significant scale prior to the 1790s, and it is likely that for most of the century impressment operated periodically in a small-scale manner similar to the three seamen sent aboard HMS Romney in 1775. THE DISTRICT COURTS

The vast majority of punishments were meted out by the district courts. Magistrates ordered at least 352 secondary punishments from 1751 to 1796: while the data provide only a partial picture, they do indicate sev-

Punishment in a Fishing Society 233 Table 7.2 Noncapital punishment at the district courts, 1751-96 Type of punishment Whipping Banishment from Newfoundland Banishment from Newfoundland: Convicted in Ferryland riot, 1788 Banishment from district Ordered to serve in Royal Navy Deported as a vagrant House pulled down Fines Fines: convicted in Ferryland riot, 1788 Placed in stocks Imprisonment Public apology ordered All punishments

Men

Women

Total

% of total punishment

67

0

67

19

6

1

7

2

11 3 1 1 2

0 1 0 0 0

11 4 1 1 2

119 115

10 0

129 115

9 4 2

0 0 0

9 4 2

340

12

352

3 1 0 0 0.5 37 33 3 1 0.5 100

Source: See Notes on Primary Sources

eral distinct sentencing patterns. Women made up a small proportion of the total number of offenders punished and no woman was ever corporally punished. Of the range of different noncapital punishments available to magistrates, they relied overwhelmingly on whipping and fines, which together constituted nearly 90 per cent of all penal sanctions. Transportation, banishment, and corporal punishments other than whipping were never used to any significant extent, and only four men were sentenced to terms of incarceration. Individual incidents significantly skewed the overall pattern. Fines levied against those convicted for an affray in Ferryland in 1788 matched the total number issued throughout the period under study. Whippings comprised nearly a fifth of all punishments, but when the fines for the Ferryland riot are subtracted from the total, that proportion rises to 28 per cent. The use of fines in the district courts followed the pattern at the assizes. Seen as the principal means of raising local revenues, fines were levied for a wide range of misdemeanours, the most common of which was simple assault or trespass. These actions ranged from criminal trials

234 The Rule of the Admirals

to civil litigation. At the Harbour Grace quarter sessions in 1789, for example, David Bolan was convicted of contempt of court for obstructing local constables in executing their duty. The court ordered Bolan to pay fines that amounted to an entire season's net wages: nine pounds for the offence; three pounds two shillings court costs; and an undetermined amount in recognizance for his good behaviour.39 At the other end of the spectrum were suits designed to wage personal vendettas through the courts. For instance, in 1795 Michael Ryan prosecuted four local women for assault in Ferryland, alleging that he had been battered with stones. But the justice of the peace recorded: 'defendants in justification said that the plaintiff had several times behaved rude to them and as a punishment they were determined to "hustle" him as they term'd it.' Finding that the women had no evident malice, the court reprimanded both parties and fined them each four shillings.40 THE FERRYLAND AFFRAY

Countless similar cases came before the courts each year, but a single incident eclipsed all of them in its scope. During two weeks in September 1788, the Ferryland district court convicted 155 men - nearly the entire adult male Irish population of the community - for 'riotously and unlawfully assembling during the Winter to the great terror and injury of all His Majesty's subjects.' The men were fined an average of five pounds each, and the total amounted to £640. Ten of those fined were sentenced to be deported to Ireland, of whom five forfeited all of their wages and one received thirty-nine lashes; another man was sentenced to ninety lashes.41 Little is known about the riot other than that it occurred during the previous winter and involved a battle among the local factions from Leinster and Munster. Why the incident attracted such a draconian reaction is unclear. Once raised, however, the ire of the magistracy - led by the presiding naval surrogate, Captain Edward Pellew - was unequivocal. After noting that ten of the men had absconded, the court ruled that they had forfeited all of their wages and decreed that they were all banished from the district as vagrants, never to return on pain of thirty-nine lashes on the bare back with the cat-o'-nine-tails.42 In the aftermath of this incident, the merchants and prominent planters held a meeting, petitioned Governor Elliot, and formed a committee to oversee the building of a district gaol to deter future outbreaks of unrest.43 Although the web of factors behind the entire affair will never be

Punishment in a Fishing Society 235

sorted out, its roots ran deeply into the island's sectarian culture. Christopher English has argued that the riot and subsequent trials in Ferryland signalled the end of the island's moral economy and its concomitant apparatus of flexible, locally mediated forms of dispute resolution.44 Yet the incident in Ferryland had little to do with any sort of broader shift in the island's legal culture, which in any case did not occur until the 1820s, but was instead part of a local power struggle within the Irish Catholic community. It did not arise out of any new effort to centralize the imperial administration of Newfoundland; rather, it was a byproduct of the forces unleashed by the edict of religious toleration in 1784 and the efforts to establish the Roman Catholic Church in Newfoundland. Despite the recent changes in official policy, the status of Roman Catholicism remained insecure. James Louis O'Donel, who became the first Bishop of Newfoundland, was in a particularly vulnerable position as he tried to organize new parishes in the face of hostility from many Protestant merchants and magistrates, as well as some opposition from within the Irish community itself. Father O'Donel, who was from Munster, had become locked in an intra-Irish battle with Patrick Power, an itinerant Catholic priest who rallied the opposing Leinster faction to oppose O'Donel's efforts to establish a parish in Ferryland.45 Well aware of the need not to alienate the island's government, Father O'Donel tried to distance himself from the incident in Ferryland. In a letter to Governor Elliot, O'Donel maintained that he had taken no part in the riots, which he saw as a by-product of 'deep rooted malice in the hearts of the lower class of Irishmen,' combined with liquor, ignorance, and a proclivity to spend too much time playing hurling.46 However, in a letter to a fellow priest, O'Donel offered a much different assessment. Acknowledging the ongoing feud between himself and Power, O'Donel claimed that the local magistracy had taken advantage of the division between the factions from Munster and Leinster. According to O'Donel, the justice of the peace at Ferryland had 'got many a luscious morsel before my arrival by the fines levied on those rioters.' Justice Carter, who was a 'bitter enemy to Roman Catholics,' had reputedly promised Power protection and official favour in return for his cooperation.47 By exploiting the feud between the people from Munster and Leinster, which Power had allegedly stirred up in the first place, Carter was able to exaggerate the degree of lawlessness and argue for the need for stiff measures to combat social unrest. On the question of anti-Catholicism, Father O'Donel was speaking from personal experience. Two years earlier Prince William Henry, who

236 The Rule of the Admirals

commanded one of the ships in the Newfoundland squadron, had insulted O'Donel in public and thrown an iron file at him through a window, wounding him in the shoulder. O'Donel reported that he had heard rumours that the prince planned to run him through with his sword and get witnesses to testify that it was self-defence. Appalled at the religious toleration that had developed under Governor Campbell at Placentia, a priest had been permitted to celebrate Mass in the local courthouse - the prince reputedly plotted to murder O'Donel, who went into hiding until the naval squadron left St John's.48 Like Captain Pellew, Prince William sent an explicit message to the Irish community. Writing to his father, George III, he gave a detailed account of how he had suppressed a group of rebellious Irish servants in Placentia.49 As captain of HMS Pegasus, William had been ordered on a surrogate cruise to the South Coast in July 1786. After calling in at Little St Lawrence, he sailed to Placentia, where he moored ship and came ashore twice a week to hold sessions of the surrogate court at the local courthouse. According to the prince, on the first Sunday in August, when all of the boats had come in from fishing, a drunken crowd of about three hundred Irish servants assembled before the home of the senior justice of the peace. When the magistrate tried to disperse them, they 'abused him most grossly/ throwing stones at all the civil authorities and breaking the constables' staves. He then rowed out to the Pegasus and advised Prince William that a riot had broken out. The prince went ashore with an armed detachment of marines, scattered the group of servants, and pursued them across the beach until the suspected ringleader was apprehended. He convened a court to try the ringleader, who was sentenced to be whipped a hundred lashes; the punishment was inflicted with the 'utmost severity.' William could have responded to the situation in any number of ways, from imprisoning the leaders on his ship, placing them in the stocks, or meting out fines. Yet he chose to set an example by severely whipping one man. As part of the cultural transference from the Royal Navy to the customary laws of Newfoundland, the practice of relying upon whipping formed a defining characteristic of the eighteenth-century penal regime.50 But the official response to the servants' insubordination did not end there. During the remainder of the month, the prince and the Protestant merchants worked together to reaffirm the authority of naval government. Their course of action demonstrated how religious sectarianism had become intertwined with colonial governance. All of the local inhabitants were required to take the oaths of allegiance, while William

Punishment in a Fishing Society 237

extended his stay to September. Equally important, at the courthouse the magistrates and the leading merchants of Placentia Bay presented the prince with a petition concerning the 'alarming growth of Popery' in the region. The petition requested Governor Elliot to authorize the rebuilding of the English chapel in Placentia, where, according to Prince William, the Catholic priests exercised enormous control over the Irish. William oversaw a subscription to raise funds for the new chapel and to provide for a stipend for a clergyman. To set an example, he donated a silver plate to the Church of England parish, and on two Sundays he personally read divine service in the courthouse. Entreating every Protestant in the community to make a contribution, which was to be paid directly to the justices of the peace, the prince claimed that his efforts were highly successful. Before he sailed from Placentia, £150 was collected for the Protestant church and thirty pounds for the clergy. In taking this course of action, he had Governor Elliot's full approval. After the Pegasus had warped into St John's harbour, William promptly went aboard the flagship, HMS Salisbury, where he gave the governor a complete briefing.51 R E L I G I O N , C L A S S , A N D NAVAL G O V E R N M E N T

The actions taken by Captain Pellew and Prince William cannot be dismissed simply as isolated incidents of petty tyranny or expressions of individual prejudice. Though they both appeared to have a strong personal streak of cruelty and bigotry, their behaviour fit a larger pattern of governance. In the first place, the use of noncapital punishment in such cases was a highly calculated act: the prince did not summarily line up all the rioters and have them beaten, nor did he press the troublesome fishermen into the navy. Instead, he selected the person deemed to be the ringleader and convened a surrogate court. Penal severity and judicial discretion went hand in hand. The use of judicial force was not a mere act of official brutality but rather an aspect of a regime calibrated to maintain authority through the deployment of regular examples and periodic terror. More importantly, the key to understanding the penal regulation of the Irish in Newfoundland lies in the fact that punishment was oriented as much around class as it was around religion. As we have seen, the bulk of the planters and merchants in pre-1792 Newfoundland were from the English West Country.^2 And, as argued in the Introduction, the island had a propertied class dominated by one denomination and a labour force supplied

238 The Rule of the Admirals

by another. One of the consistent tenets in imperial policy with respect to Newfoundland was the aim to prevent surplus labour from accumulating during the winter. Merchants, planters, and their legitimate servants were never prohibited from settling on the island, but dieters, servants who lived in Newfoundland without a written contract to serve under a master, were regarded with suspicion.53 In 1764 Governor Palliser promulgated a penal code designed to control the mobility of labourers, most of whom were Irish Catholics. In a series of orders published together as a single decree, Palliser imposed three oppressive restrictions on Roman Catholics: they were not to overwinter in a community where they had not worked the previous summer; no more than two men could live in a single house together, unless they had a Protestant master; and they were prohibited from keeping a public house or retailing liquor. Further, no one was permitted to give dieters room and board during the winter, while all men and women deemed to be disorderly or useless were to be punished under the Vagrancy Act and deported from Newfoundland.54 This proclamation, which magistrates were to read at quarter sessions each year, was renewed by Governor John Byron in 1770 and Governor Robert Duff in 1775.55 Enforcement varied according to administrative initiative; governors and surrogates enforced or ignored regulations as they saw fit. Palliser's Act of 1775 codified the regulations that had been previously left to the governor's discretion. It prohibited labourers who were not indentured servants from remaining on the island after the summer fishery had ended. Masters were not allowed to ship seamen or fishermen to Newfoundland without first entering into a written agreement, signed by both parties, stipulating the servants' wages, conditions of service, and date of termination. The statute required masters to reserve or deduct from their servants' wages an amount (not to exceed forty shillings) sufficient to pay for their passage home. The intention was clearly to rid the island of potential dieters: 'such hirer or employer shall, at the end of each fishing season, or at the expiration of the covenanted time of service of such seaman or fisherman, pay, or cause to be paid, to the master of a passage or other ship, who shall undertake or agree to carry such seaman or fisherman home to the country whereunto he belongs.'56 Concerns over social unrest underlaid the desire to control masterless men. Most of these men were Irish Roman Catholics, and poverty, lawlessness, and Irishness were inexorably linked in the minds of those who, like the rector at Trinity, believed, 'necessity obliges the Irish to mob frequently.'57

Punishment in a Fishing Society 239

In addition to major incidents such as the Ferryland affray, sectarian conflict also manifested itself through intimidation. Direct evidence of how such friction manifested itself in popular culture is rare, but in 1770 a magistrate preserved a copy of an anonymous letter that raised the spectre of nihilistic violence: 'by God i will fire the house i will indeed you may watch out but cannot Catch for it shall be done by a very faithful man if he is catched he will get no money as for your eldest Daughter the next time that ever I see her conveniently i will shoot her through the Brain for she does not know when it is she cant be aware of one more than another as for Mrs. Barrn I will only Give two or three Cuts with a Knife and her Dayther [daughter] I will kill by God i will and if i can do it i will murder every body i will by the Heavenly father i will. My name is i am an Irishman P.N.O.'58 This letter was one of a series of six notes left outside the house of Henry Badford, a St John's shipwright, over the course of a week. The writing of such letters was a capital offence, and Governor Byron offered a twenty-pound reward, as well as a pardon, to anyone who came forward with information leading to the arrest and conviction of the offender. The note provides a fragmentary glimpse of the place of violence in the island's plebeian culture. Unlike other forms of anonymous letters in the Britain, it did not explicitly draw on the language of political or class protest.59 Rather, it combined a graphic depiction of atavistic violence with an explicit threat to a particular English family and an implicit warning to the entire Protestant community. W H I P P I N G IN THE OUTPORT DISTRICTS

The use of whippings instead of other secondary punishments, such as transportation, did not mean that the penal regime was lenient. The courts ordered public whippings for a wide range of misdemeanours, from assault to simple breaches of the peace. As table 7.3 indicates, over three-quarters of all whippings - the punishment given most often to offenders convicted of theft - involved more than twelve lashes by the cat-o'-nine-tails. Roughly half of the incidents of whipping entailed the punishment of various forms of property offences. About 30 per cent were for a range of other transgressions, such as assault and various public offences. And a fifth were inflicted in cases that clearly involved disciplining servants, punishing a range of actions that came under the rubric of insolence towards their masters. Whipping had two chief characteristics: it was never used to punish an offender from the prop-

240

The Rule of the Admirals

Table 7.3 Whipping at the district courts Type of offence Burglary Larceny Receiving stolen goods Insolence, idleness Breach of contract, desertion Assault and battery Breach of peace, rioting/ affray Drunkenness Perjury Sodomy Vagrancy Unknown All offences

Flogging, unnumbered

Till bloody

1-12 lashes

1

2

13-39 lashes

40+ lashes 1 1

3

1

1 25 2 7

6

1

2 1 6 1 1 1

1 1

1 10

1

4

1 48

4

Total 2 29 2 11 2 9 7 1 1 1 1 1 67

Per offender, by sentence Source: See Notes on Primary Sources

ertied classes; and its use was neither consistently nor completely recorded in the minute books. From the perspective of the magistracy, whipping was seen as a defining feature of the naval government. When Sir James Mackintosh gave a speech in the House of Commons in favour of reforming the island's legal system, a former naval surrogate rose to give one of the few first-hand accounts of how corporal punishment was used by the courts. According to Hansard's Parliamentary Debates: 'Sir I. Coffin said, he was many years ago in Newfoundland, and never saw any law there but the cat-o'-nine-tails ... he was a surrogate himself, but he never ordered more than a dozen lashes.'60 Representatives from the island's reform committee, who had been sitting in the gallery, printed a slightly different account, in which Coffin stated that whenever a surrogate went ashore at any harbour, 'he took a boatswain's mate with him, and when any of the persons engaged in the fishery was brought before him for any offence, he ordered him a dozen lashes, and then sent him back again on board his fishing boat.'61 Coffin's emphasis on the number of lashes reflected the fact that naval officers were not formally permitted to summarily inflict more than twelve - in practice,

Punishment in a Fishing Society 241

captains typically ordered up to twenty-four lashes for minor offences - and the MP probably did not want to implicate himself in a technically illegal act.62 Clearly, in Coffin's mind, magistrates relied upon whipping as a basic tool in their day-to-day work. From the standpoint of the English establishment, serving as a magistrate in Newfoundland represented the dirty work of colonial administration. When the niece of Major John Cartwright, who had been a naval lieutenant stationed at Newfoundland from 1766 to 1770, edited her uncle's papers, she dismissed his entire tenure as a surrogate judge. 'Without entering into a detail of the petty disputes among so mixed a set of persons as would naturally compose the population of a colonial fishing station,' she affirmed, 'it may merely be observed, that he fulfilled the duties of his irksome office with that spirit of patient investigation, that anxious regard for truth, which accompanied every act of his life.'63 Views of the judicial system depended largely upon the author's social position. As Chief Justice Reeves himself confessed in 1791, many of the officers and officials brought with them a preconceived prejudice against coarse merchants and masters, though this usually faded after a year or so. Reeves claimed that spending a summer on the island had changed his mind entirely.64 Contemporaries were well aware of the social tensions that underscored the use of corporal punishment. Two manuscript accounts illustrate the wide range of attitudes towards disciplining servants. The first, provided by a visiting physician, has been cited approvingly by liberal historians. It linked the plight of servants directly to the island's lack of proper institutions: 'The common fishermen, as has been already shown, are hired from ten to thirteen pounds for two summers and one winter, but as the merchants cannot employ so many of them by ten thousand in the winter, as they can during the fishing seasons, of course they must either stay there, and starve, or return home ... [the servant,] finding himself in this melancholy situation, [is] cut off from all hope of ever being able to provide for a family, or old age, by continuing where he is deprived of the laws of his country, and every other blessing indulged by every wise, and equitable governments.'65 Conversely, Benjamin Lester, arguably the most powerful merchant in Newfoundland, offered a harsh indictment of how punishment was not serious enough. Comparing the English fishery with the French, he wrote in his diary: 'It's no wonder the French beat us in the fishery, their wages is not quite to ours by one quarter, their boats and craft not half the expense, and their crews under such regularity, that if a fisher-

242 The Rule of the Admirals

man sleeps on the ledge and is caught, he is liable to have what punishment the captain [may] please to inflict on him, even to break a limb, if done while he is asleep, and no law to injure him. This is a vast difference, when our villains will neglect going out and when out, sleep when they please, can give surly answers if the master finds fault, and at last be obliged to pay them wages, notwithstanding such neglects.'66 From the viewpoint of servants facing the prospect of the lash, the administration of law loomed ominously. Floggings of more than a dozen lashes by the cat-o'-nine-tails instilled a variant of terror as real as that inspired by public executions. In the aftermath of Captain Pellew's proclamation on the Ferryland rioters, several of the men who had absconded tried to strike a deal: they would give themselves up if the magistrates promised not to have them whipped. The justices of the peace allowed the request on condition that the men board a ship headed to Ireland at the first opportunity.67 On the other side of the judicial fence, there was at least some resistance to participating in corporal punishments. In 1785 a constable in Bay Bulls refused to carry out a court order to whip an offender. The report sent to Governor Campbell revealed how the use of whipping had become a fixture of the island's legal regime. Forced to find some justification for ordering the constable to personally carry out a whipping, the justice of the peace asked several settlers who had previously served as constables. He informed Campbell that they had all declared that it had been customary for the constable to punish delinquents when no other person could be procured.68 In spite of the magistrate's protest, the constable still refused to whip any offender. PUNISHMENT AND MASTER-SERVANT RELATIONS

It is impossible to separate punishment from the broader process of disciplining servants. Masters prosecuted servants for offences such as theft as a means to enforce their authority in the workplace. At the Trinity surrogate court in 1766, for example, a master prosecuted his servants for stealing provisions. The case was clearly framed in terms of securing protection from unruly servants: 'Complaint was made by W. Jones of English Harbour against Math. Moor, Richard Parsons and Wlm Watts for breaking open several times his storehouse and thence stealing rum, his property which gave him cause to suspect he had been a great sufferer by those villains as two of them were his own servants. Math. Moor and Rich Parsons freely confessed that the charge was true

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and said Parsons made oath that Watt was in on one of the thefts an accomplice when two quarts of rum were stole and it appearing by the report of his master Jones as well as by his own acknowledgment that he (Watt) had many times been guilty and received punishment for theft/ The magistrate took this opportunity to send a message to the community: 'It was ordered that in order to deter all servants from such practices for the future that Math. Moor and Rich Parsons shall receive two dozen lashes with a cat of nine tails on their bare backs at the common whipping post and that the said Richard Watts being an old and hardened offender shall as a more severe example receive at the same time and in like manner three dozen lashes.'69 Although courts did not draw on the law of master and servant to order whippings in cases of theft, the punishment functioned effectively to discipline workers. The statute law of master and servant did provide for punishment in cases of breach of contract. Palliser's Act of 1775 contained a wide range of provisions regulating master-servant relations, some of which we have already touched on. Masters were prohibited from bringing servants to Newfoundland without the governor's permission. All servants were to have a written contract which, if a dispute arose, the master was obliged to produce in court. During the period of service, masters were forbidden from advancing servants more than half their wages, forty shillings of which was to be withheld to pay for the servants' passage home at the expiration of the contract. All of the fish and oil produced by the masters' fishing operation were liable first for the payment of servants' wages. Any servant who willingly absented himself without permission - or neglected or refused to work according to the terms of the contract - was to be fined two days pay for each day of absence or neglect of duty. Those who absented themselves without leave for five days were deemed deserters and thereby forfeited all of their wages to their master. Surrogates and justices of the peace were empowered to issue arrest warrants for deserters and, on the oath of at least one creditable witness, to confine them in prison until the next sitting of the surrogate court or court of session. Convicted deserters were liable to be publicly whipped as vagrants and shipped back to their country of origin. Lastly, the district courts of session and the St John's vice-admiralty court were empowered to hear and determine any wage dispute or offence committed by masters or servants against the Act's provisions.70 Newfoundland historians have focused on the wages and lien system in Palliser's Act, but the salient aspect of the law of master and ser-

244

The Rule of the Admirals

Table 7.4 Verdicts in master-servant cases in Trinity District, 1765-90 Years

For servant

For master

Servant ordered to be whipped

Case dismissed

1765-70 1771-5 1776-80 1781-5 1786-90 Total

16 7 1 2 1 27

22 5 1 4 1 33

5 1 0 2 0 8

3 2 0 0 1 6

Source: See Notes on Primary Sources

vant was the effective criminalization of breach of contract. Sean Cadigan has argued that in spite of the provisions in the Act for whipping servants for breach of contract, 'local courts chose to ignore them/71 The problem with this argument lies not in its narrow application - Cadigan's ground-breaking study focuses on Conception Bay, where there are no records of public whippings for breach of contract after 1791 - but in the broader inference that magistrates were somehow reluctant to discipline servants in the eighteenth century. Cadigan concludes that the pressures engendered by the judicial resistance to enforce servant discipline helped to undermine the system of wage labour and contributed to the rise of the family fishery in the nineteenth century. Servants won an overwhelming proportion of their suits to recover wages, thus placing their masters, who were typically planters, in an increasingly untenable financial position. With indentured labour becoming increasingly unattractive, fishermen turned to their family and kin to supply the bulk of the labour needed for fishing operations.72 Newfoundland was practically unique, therefore, in that the potential for judicial repression of indentured labour was never realized. Cadigan's work forms part of a broader reaction in Newfoundland historiography against what is seen as the myth of mercantile oppression. In other words, the scale is now tipped in favour of stressing servants' rights over labour discipline.73 However, eighteenth-century Newfoundland did not diverge from the trend in the Anglo-American law of master and servant to criminalize breach of contract.74 In the first place, servants in other districts did not fare half as well as those in Harbour Grace in the late-eigh-

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teenth century. In Trinity, servants initiated three-quarters of the total actions, but they never won more than half of the total suits from 1765 to 1790. Equally important, in a quarter of the verdicts in the masters' favour, the court ordered servants to be whipped. The frequency of master-servant disputes brought before the district courts waned as the fishery's reliance on wage labour started to decline. During the heyday of the migratory fishery, the government was particularly concerned over the flow of labourers into Newfoundland. It is therefore not surprising that 60 per cent of the total master-servant cases in Trinity occurred in the 1760s, when Irishmen from Leinster and Munster flocked to Newfoundland in search of work.75 The naval surrogate in Trinity from 1766 to 1770 was Lieutenant John Cartwright, commander of HMS Guernsey.76 A vigorous administrator, Cartwright maintained excellent relations with the English fish merchants: during this period Benjamin Lester never lost a major suit. In 1766 Lester brought an action against Edward Cole for refusing to ship himself (i.e., agree to carrying out an indenture) and another servant for deserting his service. Lester's offer of three pounds was considered charity in a season that witnessed a glutted labour market.77 Both defendants were seen as part of a dangerous group of idle Irishmen. Lieutenant Cartwright ruled: 'In order therefore to suppress such wick'd practices and intolerable idleness it is hereby ordered as an example to others that the said Cole and Mahany shall at the common whipping post receive on their bare backs two dozen lashes each with a cat of nine tails/78 This decision enforced a paternalistic law of master and servant. In effect, surplus labourers had to accept any contractual terms offered to them under threat of corporal punishment and deportation as vagrants. PATERNALISM

RECONSIDERED

Magistrates used a variety of sanctions to punish those who transgressed the local social order. Servants enjoyed conditional privileges, not inalienable rights: what paternalism granted it could also take away. In using the term paternalism, I follow the approach taken by Gerald Sider.79 Sider's work contains a series of serious flaws - he oversimplifies aspects of the island's early fishery and government, for example - and most Newfoundland historians have rejected his conclusions.80 Nonetheless, Sider's model of paternalism provides a useful

246 The Rule of the Admirals

means for understanding master-servant relations in the eighteenth century. According to Sider, the seemingly mutual, personal ties between masters and servants masked a fundamental imbalance in material power. Sider's model offers a highly useful framework for studying social relations generally and the administration of law in particular.81 In an incisive analysis of paternalistic authority, he examines the process by which a master provided food and drink (over which masters often had a monopoly) to his servants during holidays in the late-eighteenth century. Sider argues that this conveyed a powerful double message: the master was the source of what they ate and when they ate it, since he controlled the allocation of provisions for designated special occasions. Sider maintains that this combination of symbolic and material power over the conduct of customary celebrations formed a social mirror to the legal customs the courts used to regulate relations between masters and servants.82 Whether a merchant or planter acceded to a servant's request or periodically acted altruistically is not the point: what matters, at bottom, is that such decisions were almost exclusively within the master's discretion. This approach differs from the model of paternalism employed by Bryan Palmer and Sean Cadigan, both of whom lay greater stress upon reciprocity and communal links.83 Newfoundland was, of course, different from the mainland colonies in many important respects. When the reliance upon indentured labour was at its peak during the eighteenth century, the institutions of bourgeois society which worked to enforce moral regulation and vertical social bonds - clergy and churches - had not yet become entrenched. The question of whether maritime culture - usually depicted in picaresque terms - was somehow inherently distinct from mainstream Anglo-American society has been a topic of much debate. Whereas Judith Fingard has argued that the popular culture of sailors had little in common with the social norms in Canadian ports, David Alexander concluded that seamen were simply working men who got wet.84 This debate is not particularly relevant to the case of early Newfoundland, because maritime culture and the culture of the island's coastal communities were, in my view, essentially one and the same thing. One of the more interesting aspects of the island's popular culture is the degree to which the work of maritime life - i.e., the fishery - was synonymous with Newfoundland society writ large. This does not mean, however, that it was beyond the pale of English legal culture. As Daniel Vickers and Vince Walsh have argued, maritime culture formed an overlooked yet powerful force in colonial America, one which cannot be written off

Punishment in a Fishing Society 247

as alien to mainstream society.85 Fishermen and seamen working under contract in Newfoundland were subject to the law of master and servant. And though Marcus Rediker overstates the case, masters did exercise enormous power over their crew.86 As a sailor visiting Newfoundland noted in 1794, crewmen became intimately acquainted with the temper and idiosyncrasies of their captain.87 In one of the most famous accounts of maritime labour, Richard Henry Dana argued passionately that a single episode of corporal punishment could exert a profound and lasting impact on the relationship between a master and the entire crew.88 Masters and naval officers were not necessarily cruel - Newfoundland governors routinely responded favourably to petitions for wages and redress for breach of contract - but these choices were the prerogative of the governor, his surrogates, and the justices of the peace. Such discretion can be plainly seen in Governor Byron's response to a servant's petition against his master for non-payment of wages in 1770. The servant admitted that he had been unable to perform his duties due to illness, but he insisted that he had become sick through no fault of his own after being shipped to work in the fishery. Byron ordered Robert Carter, a justice at Ferryland, to look into the matter. He reminded Carter that masters had an obligation not only to take care of their servants, but were also legally obligated to pay wages to those who had signed a contract. Nonetheless, Byron added an important caveat: 'where circumstances shall be made appear against servants, who shall abuse an indulgence of this sort, by feigned sickness or sickness brought on by drunkenness the masters may deduct two days for one of every day neglected of their duty.'89 Allowing such indulgences did not mean that magistrates were recognizing a legal right, nor did servants necessarily feel beholden because of such treatment. As a group of servants on the Southern Shore discovered in 1790, benevolence and discipline were flip sides of the same coin. Suspected of having stolen some salt codfish from a merchant's flake, twelve men were examined by the local justice of the peace. Three of them confessed and were convicted of larceny, but the merchant recommended one man, who was his servant, for mercy because he was 'an old man hitherto bearing an exceeding good character.'90 While the court sentenced all three to be deported to Ireland, it gave one of them an additional sentence: 'Decreed that Thomas Quinn be punished with twenty four lashes on his bare back, as follows, viz. eight at the point beach, eight at the north side room, and eight at the court house, and to walk from place [to place] with a fish hung round his neck.'91 There is no evidence to sug-

248 The Rule of the Admirals

gest that Quinn was any more guilty of the crime than his two accomplices. The determining factor behind the decision to whip him instead of the others was simply the prerogative of the bench, which followed the lead of the complainant. From the servants' perspective, the capriciousness of paternalism meant that they had little influence over their fate when they entered the courtroom as defendants. If they were granted mercy, it was due to the whim of magistrates and masters who together selected those worthy of special consideration. As Greg Dening and others have pointed out, the incidence of judicial violence cannot simply be counted but must be measured in terms of social impact. The bare numbers of punishments - which were never inconsiderable in eighteenth-century Newfoundland - mattered less than the context in which they occurred.92 Magistrates at times explicitly cited the threat of corporal punishment in order to discipline servants. In Ferryland in 1785, for example, James Kane brought an information against three of his servants for refusing to work. The court ruled that the men were guilty of disobeying their masters' orders; they were each fined two days' wages and ordered to return peaceably to their duty. If any future complaint should be made, the servants were to be summarily whipped.93 Legal power could be wielded as much by sheer intimidation as by individual acts of judicial violence, and the spectre of punishment and brutality penetrated deeply into the mentalite of maritime life. This did not mean that state law and class oppression became one and the same thing. The fact that punishment was rooted in class relations did not mean that it was determined by it. The careful employment of penal sanctions in Newfoundland conflicts somewhat with the model advanced by Marcus Rediker.94 Where Rediker sees what amounts to naked class conflict between workers (violent popular resistance) and capital (violent legal repression), I would argue that Newfoundland magistrates were far more circumspect in their use of corporal punishment. What made whipping so effective was not its indiscriminate application but rather its deliberate calibration in response to varying local conditions. Magistrates carefully measured their responses to crime, unrest, and disobedience using an array of penal tools. CASE STUDIES OF S E C O N D A R Y P U N I S H M E N T S

To assess the impact of punishments at the local level, the various types of social regulation need to be weighed together. For example, four

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court actions brought in the space of a year in Trinity displayed the multiple faces of paternalistic authority. First, in May 1755, John Stanweth, a ship's carpenter, complained that John Goold, a fishing servant, had struck him in the face. In response, Thomas Warden, the local justice of the peace, ordered Goold to receive a dozen lashes at the whipping post.95 At the next sitting of the court, Benjamin Lester alleged that John Walden, one of his servants, had been drunk and ill-behaved. According to the memorandum: 'The next day John Walden down upon his knees in publick company and acknowledge[d] what he had said to be false and asked Mr. Lester's pardon and it was forgiven him upon condition not to be guilty of the like for the future.'96 This act of contrition symbolized the potent mix of retribution and mercy, of personal relations and public authority, which suffused the administration of law. The third example occurred in November 1755, when the servants' contracts were being settled. John Brock brought an information against one of his servants for refusing to go to sea. The magistrates issued a warrant for the man to return to work and, if he did not, authorized Brock to seize his servant's chest and clothes, as well as any other property, and to 'turn him out of doors and not allow him any victuals.'97 Such a threat loomed particularly large as winter approached and the servant would have been hard pressed not to relent. Lastly, in February 1756, Warden recorded that John Johnson was put into the stocks for being drunk and abusive towards his master.98 As calculated examples in a small community, such incidents were sufficient to establish an effective penal code in the minds of those labouring in the local fishery. As the fishing season progressed through the summer, justices of the peace and naval surrogates invariably became drawn into disputes between masters and servants or among planters and merchants. The latter concerned roughly legal equals - or, at the very least, those for whom fines or arbitration were used instead of whippings - but the former was distinctly the terrain of the magistracy. Like justice in many colonial territories, the bulk of business before the courts involved minor suits for debts less than seventy-five pounds or petitions for unpaid wages under twenty-five pounds.99 Petty complaints raised by disgruntled servants and masters comprised much of what justices of the peace faced year after year. Many of the suits brought before the courts each autumn were the climax of a running battle that can be discerned only through an extended case study. In 1773, for example, Walter Welch presented a

250 The Rule of the Admirals

petition to the surrogate court in Ferryland detailing how he had been beaten and unfairly dismissed by his master, William Saunders.100 Contracted to work as a splitter, Welch had arrived in Ferryland the previous May. After returning from his first fishing voyage, he was ordered to work with the shore-crew washing fish. Welsh had apparently signed his shipping paper in Ireland; whether he had worked previously in Ferryland is uncertain, but he probably had some experience, since splitters required a relatively high degree of skill. To be forced to wash fish with the shore crew would have been an insult to any splitter and was likely used as a form of 'working up/ that is, using demeaning tasks as a type of punishment.101 Saunders admonished him for doing a poor job and struck him two or three times, upon which Welch complained to Robert Carter, the local justice of the peace. Summoned to explain the beating, Saunders told Carter that the next time he thought Welch deserved it, he would beat him even worse. Welch asked to be released from his contract, but Saunders refused, claiming that Welch was a good splitter whom he could not do without. Welch then allegedly skulked away and hid himself. Saunders remonstrated to Carter, who ordered a fine of three shillings for each day Welch neglected his duty. Some time later another altercation occurred when Welch returned the key to the provisions chest. Saunders apparently thought too much had been taken and ordered Welch to go to sea again. The next morning he commanded Welch to cut wood and afterwards refused to allow him to bring his clothes to the washerwoman. Ordered back to work, Welch refused on the grounds that it was a Sunday. His master then pushed him into his house and struck him twice on the nose; he ran outdoors but was struck on his side and collapsed, bleeding over the dirty linen he was still carrying; seeing this, Saunders kicked it into the dirt. The next morning Welch again went to Carter. Saunders informed Carter that Welch had refused to work and was 'otherwise very saucy for which reason he struck him/ He said he was now willing to release his servant from his indenture, but Welch maintained he would serve his whole time and then have his wages. But Carter would have none of this and gave Welch his clearance. He asked for the shipping paper, which Welch refused to give up, and Carter replied that if he did not deliver it within twenty-four hours, he would be flogged. At the surrogate court - where Captain James Howell Jones presided alongside Carter - Welch was found to be 'a very troublesome and litigious person and has several times neglected his

Punishment in a Fishing Society 251

duty.' The court sentenced him to receive corporal punishment and to be paid only for the time he had done his duty. For the assault Saunders was fined three pounds. While a cursory reading of this decree might suggest a simple case of punishment for insolence and a fine for assault, the dispute between Welch and Saunders had encompassed specific grievances over an entire fishing season. Through the use of violence, the law (rules for neglect of duty), control of work conditions, and then violence again, Saunders reacted to perceived instances of substandard performance, desertion, improper use of provisions, and refusal to work. In response, Welch sought redress through the law (by appealing to justice Carter), objected to unfair work conditions, complained again to Carter, and then petitioned the surrogate court. Carter discharged his office according to the customs of the country, by which he tried to arbitrate the dispute, then fined Welch for desertion, and finally used the threat of flogging. None of these proceedings would have been recorded if Welch had not petitioned the visiting naval surrogate. Unfortunately for Welch and many other servants, in such cases the surrogate courts consistently upheld the authority of the local justice of the peace. Even in cases that did not involve lengthy disputes or appeals to a surrogate court, magistrates faced suits that forced them to wade into the tense relationships that often developed between servants and masters. In August 1786, for example, John Clinch, a justice of the peace in Trinity, heard a complaint which clearly exposed the cracks in a captain's authority over his crew. John Andrews, master of the brig William, brought an information alleging that Thomas Taylor, a mariner under his command, had assaulted him and had been insubordinate while the vessel was readying to sail from St John's harbour. According to Andrews, after the crew had raised and catted the anchor, Taylor used an improper method to clinch the stopper (the rope securing the anchor to the cathead) and, insisting his way was best, refused to follow Andrews's orders. A heated argument ensued over the correct way to fasten the stopper - Taylor reputedly derided Andrews's seamanship as lubberly - and the confrontation turned violent.102 Since the circumstances surrounding the use of violence bore directly on the question of culpability, the court investigated the details of the affray. The information recounted how the fight broke out: [T]he said Andrews then Damned him for a Jowling rascal - the said Taylor returned the compliment in the same words, the said Andrews not

252 The Rule of the Admirals expecting such an answer, supposed it a mistake, and desired a repetition of his answer, which the Taylor immediately gave, viz. What do I say - I say you are a damned rascal at [the] same time looking the said Andrews full in the face, such behaviour exasperated the said Andrews so far as to strike him, which the said Taylor likewise immediately returned - from whence a scuffle ensued, sometimes one down sometimes the other, at length the said Taylor getting his knees on the said Andrew's breast, and taking him by the stock said, now you bugger I'll choke you - after a short time the said Andrews disengaged himself from the said Taylor, with his shirt and waistcoat torn in pieces and full of blood - During the scuffle the mate and men stood by mute.103

Andrews's testimony placed him on a firm legal footing, since maritime law permitted masters to flog disobedient seamen. Masters were not permitted to beat seamen cruelly; they were not, that is, to injure a man or cause severe bleeding, and they could not legally flog ill crewmen or deny food or water as a form of punishment. But they could expect assistance from the crew, who were legally obliged to constrain any disobedient seaman. In cases where a servant's insolence was proven in court, magistrates could sentence the offender to be whipped, fined, or imprisoned (or a combination thereof), as well as dismissed from the ship.104 The court first had to determine whether the initial beating was justified and whether Andrews had used excessive force. If it ruled that Taylor had assaulted Andrews and disobeyed lawful orders, the court had a wide range of penal options at its disposal. The court heard testimony from the entire crew. Taylor denied striking Andrews or using abusive language, adding that he had obeyed the order to cat the anchor. Five other mariners serving aboard the William then testified; the men all stated that they had not seen Taylor actually strike the captain, but they gave varying accounts of the incident. Two of them testified that they had tried to separate Taylor and Andrews during the scuffle, while two others affirmed that a great deal of blood had spilt about the deck. Another seaman claimed that not only had Taylor made no resistance to the first beating, but that Andrews had taken off his coat and renewed his attack a second time, grabbing Taylor by the shoulders and tearing his shirt. The final witness was the mate, who testified only that he saw an altercation during which the captain struck Taylor. Since none of the witnesses stated that they had seen Taylor strike Andrews, the prosecution focused on the defendant's alleged insubordination, particularly his use of impertinent language.105

Punishment in a Fishing Society 253

This case provides important insights into how local courts viewed the problem of labour discipline. Although the jury's verdict found both parties at fault, the crewman was punished much more severely than the master. Thomas Taylor was fined three pounds plus the gaoler's fees, while John Andrews had to pay all of the court costs. To buttress the master's blighted standing, the court ordered Taylor to ask Andrews for his pardon, and he was to be discharged from the brig's crew. In a revealing statement, the jurors ruled that 'in consequence of the said John Andrews renewing the attack the second time, they cannot award any corporal punishment to be inflicted on the said Thomas Taylor.'106 By phrasing the judgment in the negative, the court acknowledged that Taylor would have been whipped had Andrews not persisted in beating his crewman. The judgment illustrates how local courts could function at three interrelated levels: upholding the rule of law (apportioning fines based on the relative culpability of the two parties, and ordering the discharge of a disobedient seaman according to maritime law); exercising judicial discretion (issuing the additional requirement that the seaman personally apologize to the ship's master); and demonstrating mercy (publicly pronouncing that the accused would not be whipped, despite the fact that he had been disobedient). Power was not simply exercised by meting out punishments to the full extent of the law but rather flowed through parallel forms that mutually reinforced both the legal and social order of class relations. Put simply, Taylor was never whipped but was punished nonetheless. The spectre of corporal punishment continued to hang over fishing communities in the early nineteenth century. An incident which occurred in Burin in 1810 illustrates the symbiotic relationship between sectarian tension, class conflict, and the use of public whipping. According to the local justice of the peace, the problem started when he sentenced a local man to be whipped: In the first place a man was brought before me with a complaint that he had gone on board one of Mr. Spurrier's vessels, prevented the crew from working and beat two of them and threatened the master - his sentence was to receive 39 lashes at the usual place of punishment - but the morning the punishment should have taken place nearly the whole of the Irish servants came to Mr. Morris (a merchant here) and offered £150 rather than it should be executed (the punishment) - but they had said before should the prisoner be brought to the place of punishment, they would shed some blood and take him away by force - Some other cases of the

254 The Rule of the Admirals same nature, and equally as bad, have now come before me - when the people have threatened to take the life of the first constable that should attempt to apprehend the offender.107

The magistrate viewed this incident as involving much more than simply a protest against whipping. He portrayed it as the outbreak of a serious challenge to the social order which only the presence of the Royal Navy could extinguish: The Irish servants (which are very numerous) are at this time absolutely in a state of mutiny and without some armed force be stationed here, the lives of the inhabitants are in danger. Probably on account of their wages they may be kept within bounds until the expiration of their time of servitude (20th October) but, when they become their own masters, I could not answer for them. If His Excellency therefore would have the goodness to station one of His Majesty's Schooners here for the Winter, it would have an excellent effect and I have not a doubt but that regularity and good behaviour would, by that means be kept in this district/108 So long as servants were kept under contract, they were seen as controllable, but the justice of the peace dreaded the prospect of facing masterless men. Like his predecessors in the eighteenth century, he saw the Royal Navy as the vital safeguard of authority. CONCLUSION Whipping was a hallmark of naval rule, and it occupied a prominent place in the legal culture of eighteenth-century Newfoundland. In many respects, the island's fishing servants were in a position similar to the convicts in New South Wales. In both cases a class of labourers worked under an indenture and penal code designed to ensure discipline through exemplary punishment. The cat-o'-nine-tails was a feared tool of repression when used to effect. Punishment was highly discretionary, and decisions about when and how to punish servants remained the prerogative of individual masters and magistrates. They made their decisions based on the common law, local customs, and paternalistic authority. Two factors shaped the use of noncapital punishments in Newfoundland. First, the limited administrative infrastructure available meant that local officials could not embark on large-scale initiatives such as prison-building or rely on the frequent use of transportation, both of which required funds beyond the means of the island's govern-

Punishment in a Fishing Society 255

ment. Without a local legislature in which to pass bills of appropriation, naval governors had to rely upon the taxes periodically approved by ad hoc committees and raised by district magistrates. The courts did have a range of options in meting out noncapital punishments, but judges and magistrates displayed an overwhelming preference for two types of punishment: fines and whippings. The former represented an expedient means to raise funds locally; the latter formed the primary tool of discipline. Second, the magistracy deliberately employed noncapital punishments to reinforce the social order in local communities. Designed to discipline unruly servants as much as to castigate offenders, punishment reflected both the island's culture and its relations of production. Planters and merchants were never subjected to whippings, while the threat of corporal punishment hung over everyone else working in the fishery. Additionally, the naval government targeted Irish Roman Catholics generally and dieters in particular: edicts of toleration could not mask the fact that elements of the Penal Code remained in force until the passage of the Catholic Relief Act of 1829. Incidents such as the Ferryland affray in 1788 and the conflict in Burin in 1810 were part of a broader pattern whereby magistrates used corporal punishment as a means to intimidate Irish fishing servants. As part of the cultural transference from the Royal Navy to the island's fishing society, whippings comprised a central feature of the penal regime. Naval government had become such an integral facet of Newfoundland's legal culture that no one seriously challenged the judicial role of naval officers until the 1820s, when local reformers began to condemn it as a grievous symptom of tyranny.

8

The Fall of Naval Government

The reform campaign against naval government in the nineteenth century has figured prominently in the writing of Newfoundland history. The traditional school of thought - which was established by D.W. Prowse and reached its apogee with A.H. McLintock - placed the reformers at the head of a colonial struggle to break the yoke of naval governors and absentee merchants responsible for the island's backward development.1 In the first serious challenge to this orthodoxy, Keith Matthews asserted that the grant of representative government in 1832 marked simply the inevitable success of a colonial elite's ambition. As recent immigrants from Ireland and England, the reformers were merely following political currents in Britain, and they imposed a nationalist ideology which bore little relation to circumstances in the colony.2 Matthews's thesis has been criticized by Patrick O'Flaherty, who maintains that the reform movement comprised a series of hardfought battles against long-established injustices. According to O'Flaherty, reformers such as Patrick Morris and William Carson were responding to a legitimate sense of local grievance caused by systemic inequities suffered under naval rule.3 In an analysis of how the reform movement shaped economic policy, Sean Cadigan has argued that while the reformers did respond to some local issues, they were a small mercantile and professional elite who based their ideas largely upon British-shaped gentry aspirations.4 And in a recent study of sectarianism, John Greene claims that local disputes over religion formed the

The Fall of Naval Government 257

driving force of the reform movement. The campaign for representative government was the means by which Irish Catholics fought for their civil rights against a reactionary Protestant elite.5 This chapter offers an alternative interpretation of the rise of the reform movement and the fall of naval government. It argues that far from being inevitable, the demise of naval government came after a protracted political campaign: though the surrogate courts were abolished in 1824, the basic structure of the colonial state remained intact until the grant of a local legislature in 1832.6 The first phase of the reform movement, which was dominated by Irish Catholics, repeatedly appealed for an end to naval government, but these efforts met with limited success in the face of opposition from both merchants and government officials. The pivotal factor in the campaign for representative government was the formation of a broad-based coalition in 1828, when concerns over taxation brought together leading members of the Catholic and Protestant communities. Like the political battles of the 1730s, the struggle against naval government took place on both sides of the Atlantic. In London the reformers overcame the imperial government's intransigence through a strategy designed to gain support in Parliament and to undermine the Colonial Office. Analysis of local meetings and petitions, as well as parliamentary debates, also indicates that the press played a crucial role in the reform movement's ability to embrace disparate socio-economic interests. The newspaper press worked to maintain the necessary image of unity and respectability, and it provided essential political momentum throughout the 1820s and early 1830s. The movement in favour of reforming the island's legal system was part of a broader wave of political upheaval throughout the British Isles in the early nineteenth century. British and Irish reformers campaigned for an end to slavery, public whippings, and other practices deemed contrary to the natural rights of man. Irish politicians worked particularly hard to persuade the British government to repeal the penal laws affecting Roman Catholics.7 Reformers in St John's drew upon this larger cultural milieu to formulate their demands for an end to naval government, but the impact of events and trends in Britain and Ireland on the course of reform in Newfoundland can easily be exaggerated. The Colonial Office remained wary of bestowing legislative authority on British possessions, and prior to 1828 public opinion in Newfoundland was divided on the question of reform. The merchant elite did not support the campaign for representative government until they became

258 The Rule of the Admirals

convinced that it was in their immediate economic interests. The fall of naval government had long-term ramifications for the development of both nationalism and democracy, as it created a convenient scapegoat for Newfoundland's problems and established a historical outlook which persisted well into the twentieth century.8 THE ORIGINS OF THE REFORM

MOVEMENT

Despite the evident strength of the naval government in the early nineteenth century, beneath the political surface surged forces that threatened the entire system of governance. The decade after the peace of 1815 witnessed the evolution of bourgeois culture in St John's. The roots of this social transformation grew out of the island's remarkable economic development during the French Revolutionary and Napoleonic Wars. As Newfoundland became a populous colony with a resident fishery, incipient political institutions emerged in St John's, such as the Society of Merchants and the Benevolent Irish Society.9 Accompanying these organizations was a momentous development: the first local printing press. Operating under licence from the governor, in 1807 John Ryan began the^Royal Gazette, a weekly paper published in St John's devoted largely to government notices, official proclamations, and mercantile advertisements.10 Although Ryan could initially publish only materials approved by the governor's office, the appearance of a local press marked a formative stage in the monitoring of state power. For the first time, the court calendar and the outcome of trials were published, providing a basis of accountability that far outstripped the traditional forms of communication. Under Sir Francis Forbes, chief justice of Newfoundland from 1817 to 1822, the judiciary also took a much more active role in upholding property rights and checking abuses by local officials.11 The press facilitated this process by creating a public space in which the bourgeoisie could fix its place in the social environment, identify its local interests, and promote its own particular causes.12 Early demands for reform had come primarily from St John's merchants. The Society of Merchants petitioned repeatedly for advantages in trade, vowing to defend the colonists' rights secured by the British constitution. A significant challenge to the governor's authority emerged in 1811, when local merchants organized meetings to discuss grievances over a statute authorizing the lease of ships' rooms as private property.13 In the island's first protest pamphlet, William Carson openly criticized the seizure of common property without the inhabit-

The Fall of Naval Government 259

ants' consent.14 Carson's next tract warned the government not to insult the rights of Britons living in Newfoundland. The colonists deserved, he concluded, 'what is unquestionably their right, a civil Government, consisting of a resident Governor, a Senate House, and House of Assembly.'15 From its beginnings, reform rhetoric identified social progress closely with the attainment of formal institutions comparable to other colonies and the constitutional rights granted to all British subjects. By 1820 the press included newspapers that were clearly independent of the naval government. St John's had two major papers - the pro-reform Public Ledger and the Mercantile Journal - and a third, the pro-Catholic Newfoundlander, appeared in 1827.16 While Newfoundland had lagged behind colonies such as Upper Canada in the early development of an independent press, the public debates in St John's were now as lively as those taking place in York.17 Policies of the naval government were for the first time subjected to potentially critical public evaluation; the governor's office could no longer monopolize the process of political legitimization. Freedom of speech, which had emerged in England the previous century, eventually became a pivotal factor in the eventual downfall of the naval government.18 The press did not invent political opposition but rather revolutionized its means of expression. CAUSES CELEBRES AND THE CAMPAIGN AGAINST NAVAL JUSTICE

In 1820 Newfoundland witnessed one of the most important causes celebres in its history. The affair centred on the cases of two Conception Bay fishermen, James Lundrigan and Philip Butler, who were publicly whipped after receiving default judgments in surrogate court for outstanding debts. In 1818 Lundrigan had borrowed around thirteen pounds from a local supplier and, when the surrogate court met the following year, the merchant brought an action to recover the debt. The court ruled against the fisherman, whose property was attached, but Lundrigan and his wife, Sarah, successfully resisted efforts to take possession of their house. Summoned to appear before a surrogate court in July 1820, Lundrigan refused on the grounds that he had to go fishing to feed his hungry family. Arrested during the night, he was taken to a naval vessel, charged the next day with contempt of court and resisting arrest, and sentenced to receive thirty-six lashes on his bare back. Lundrigan, who was an epileptic, collapsed after fourteen lashes, and a

260 The Rule of the Admirals

surgeon stepped in to stop the whipping. The court ordered Lundrigan to relinquish his house and assets to his creditor, thereby evicting his wife and four children. Philip Butler's case, which took place the next day, followed a similar course. An indebted fisherman, Butler was sentenced to receive thirty-six lashes for contempt of court (he was given twelve), and he and his family were also evicted from their home. Supported by a group of reformers in St John's, both Lundrigan and Butler took actions of trespass for assault and false imprisonment against the presiding surrogate judges in the Newfoundland supreme court.19 The reformers turned the cases of Lundrigan and Butler into a serious political issue. In 1820 they convened a meeting to protest against the cruel punishments inflicted for minor offences. Chaired by Patrick Morris, the meeting included many of the leaders of the Catholic community, who formed the backbone of Newfoundland's reform movement.21 The fact that Lundrigan and Butler were Irish only served to underscore the deep concerns among Catholics over the island's legal system.22 Determined to win their place in the circles of power, middle-class Catholics also supported the campaign to repeal the remnants of the penal laws. A committee was appointed to draft a petition to London: in addition to detailing the flaws in the surrogate system, the petition linked the need for a civil judiciary directly to the absence of local legislature. Stressing the reformers' patriotism and allegiance to the king, it appealed for all the rights and privileges granted to subjects in other British colonies.23 As had happened during the fishing admirals' controversy a century earlier, political protest involved manoeuvres on both sides of the Atlantic. After presenting memorials for legal reform to Governor Hamilton, the committee sent a representative, William Dawe, to convey its petition to the British Parliament. Dawe also carried letters asking Lord Holland, who led a circle of liberal Whigs, and the prominent reform advocate Sir James Mackintosh, to represent the reform committee's interests.24 When the House of Commons considered the petition in May 1821, Mackintosh asserted that he knew of 'no other colony which more required the constant vigilance of a local assembly than Newfoundland.' He took particular aim at the naval regime: The courts in question were called Surrogate Courts; the judges were principally composed of officers of the navy. Punishment for contempt was, he admitted, resorted to by courts of justice in England; but he believed the use of the lash in such cases was altogether unknown in this county; it was, however, the ordinary mode of punishment adopted in New-

The Fall of Naval Government 261

foundland.' 25 As to the root of the problem, Mackintosh charged: 'The mode of proceeding in these floating courts was not regulated by the common law of England, so much as the discipline and practice of the navy. The system was a bad one, but was, he believed, the remains of a system which was still worse.'26 The British government admitted that the island's judiciary required an overhaul, but warned of the problems associated with colonial assemblies. The Colonial Office had, in fact, already informed Governor Hamilton that it had no intention of granting Newfoundland a legislative assembly.27 Undaunted, the St John's reformers organized a public meeting to place their case before a wider audience. Held in August 1821, the meeting established the principal arguments for representative government. Patrick Morris recounted how the island's long history of oppression under English merchants and naval officers had produced a legal system unequaled in the annals of despotic nations. Not only did the absence of a properly constituted civil judiciary deny settlers recourse to British justice, but backward laws also prohibited exploitation of the island's agricultural resources and thus retarded economic development. The absence of electoral representation deprived Newfoundlanders of their constitutional birthrights as British subjects. Newfoundland was left to endure taxation without representation, while its revenues were ample to support a legislature. The committee concluded that all these problems were, at bottom, caused by the want of an elected assembly.28 HISTORY, POLITICS, AND LAW REFORM

The public outcry against the surrogate courts marked only the first salvo in a larger struggle against the naval government. Reformers incessantly attacked naval government as arbitrary, outmoded, and incompetent. In doing so, they not only drew on previous writers, such as Chief Justice John Reeves, but they also crafted their own version of Newfoundland history. Like most other nationalist movements, the St John's reformers constructed a cultural memory of oppression as a basis on which to mount attacks on the status quo.29 For example, William Carson asserted with biting sarcasm that the island's legal problems stretched back to its earliest settlers: 'The inhabitants appear to have been considered, either as a race of savages untamable by civilization, and which could not be re-trained by any regular code of laws, or as Angels descended immediately from Heaven, pure and perfect, possessing minds which did not require instruction, and passion that

262 The Rule of the Admirals

needed not the control of terrestrious institutions.'30 And, in a lengthy speech devoted largely to Newfoundland history, Patrick Morris offered a similarly harsh appraisal: 'Here, Gentlemen, a system of Government was established for this country unequaled in the annals of the most despotic nations, and a system better calculated to oppress and barbarize a country, was never framed by the perverted ingenuity of man. Under this authority the most wanton acts of violence were committed - the houses and property of the Inhabitants and Planters were burnt and destroyed, and every other means were resorted to, to drive them from the land of their birth, or to extirpate them altogether. It is scarcely creditable at the period we live in, that such a state of things could exist in a country calling itself civilized.'31 In essence, Newfoundland under naval government had failed the test of civilized society. The fervour in St John's reached new heights with the publication of an anonymous pamphlet that detailed the history of legal abuses culminating in the whipping of Lundrigan and Butler. On the problem of finding the cause of this 'maladministration of justice/ it contended: '[I]t is easy to comprehend that portion that must be of widely spreading magnitude, when it is considered that every new squadron of ships of war, and every single ship that arrives on the station, in their commanding officers, furnishes a new set of itinerant judges, who, under every disqualification for the office, save the authority which they derive under the commission of the Governor, are dispersed along the coasts of the island to exercise the functions of judges, in criminal as well as civil causes, in the surrogate and sessions courts.' The indictment of the naval government did not end there: 'When to the numberless errors in judgment, inevitably incident to such judges, and the consequent injuries to the rights of parties, are superadded the intemperate and unlawful finings, imprisonments, and floggings which they have inflicted; it becomes to a reflecting mind, a matter of surprise, how the moral relations of society have been held together, amid the heartburnings and resentments which such a system of judicature must inevitably generate.'32 For three generations, official correspondence and printed accounts had portrayed the naval governor and the surrogate system as the very bastion of English justice in Newfoundland. Within the space of a few years, however, the reform press had savaged the navy's reputation. By taking this approach, the reformers were following a well-established pattern - as Eric Hobsbawm has argued, the process of inventing a tailor-made history has been a key ingredient of

The Fall of Naval Government 263

most successful nationalist movements - and the only exceptional aspect of this rhetoric is the degree to which Newfoundland historians have accepted such polemics at face value.33 C O N S T I T U T I O N A L R E F O R M , 1824-26

In 1824 the reformers scored their first major victory. The British government introduced a bill that appeared to signal the dismantling of the naval government. The Judicature Act abolished the surrogate courts and provided for a charter of incorporation to make town by-laws.34 With the end of the surrogate courts, the island had shed one of the principal features of naval government. Having sat as judges since the seventeenth century, naval officers in Newfoundland lost their prerogative to administer law. A second statute passed in 1824 repealed King William's Act.35 In 1825 the British government issued a Royal Charter that authorized the creation of a revamped supreme court and a system of circuit courts.36 Captain Thomas Cochrane, the island's new governor, was also instructed to appoint a council to aid and assist his administration. The governorship became a civil appointment, no longer under the Admiralty's control, and Newfoundland was nominally recognized as an official colony.37 When Cochrane arrived in St John's, he received a warm reception and was lauded in the local press. In January 1826 he presided over an elaborate public ceremony to mark the opening of the newly constituted supreme court. With the streets jammed with onlookers, a long procession of officials and dignitaries marched from the governor's residence to the courthouse. An officer in the parade displayed the Royal Charter as salutes were fired by an honour guard and a warship in the harbour and, to mark the occasion, the governor pardoned and released most of the prisoners from jail.38 The Royal Charter altered the island's judiciary but did not transform its basic mode of governance. Although Newfoundland was now a colony with a civil governor, many aspects of naval rule persisted under Governor Cochrane's tenure. Like most of the earlier naval governors, Cochrane was a relatively young career officer with good political connections. He had attained the rank of captain at the age of seventeen, and then served in the West Indian and North American squadrons before receiving his Newfoundland appointment. Still a captain when he assumed the governorship at the age of thirty-six, Cochrane was a martinet who treasured pomp and circumstance.39 In a report to the Colonial Office, he affirmed, 'I am persuaded from what I

264 The Rule of the Admirals

have heard of the people that a governor ought to go among them with all the attributes of consequence and authority belonging to the situation to ensure him that respect they are not over anxious to observe to those placed over them.'40 Not only was Cochrane himself little different from his predecessors, but the powers he enjoyed under the Judicature Act were not much different from those wielded under the old regime. Added to the system of colonial government was a council comprised of the chief justice, two assistant judges, and the commander of the army garrison - but this was merely an advisory body, appointed by the governor and effectively under his control.41 Like generations of naval officers before him, Cochrane was left to govern Newfoundland as best he saw fit, without the encumbrance of an elected assembly. In early 1826 Governor Cochrane moved to implement his instructions from the Colonial Office. He held meetings with merchants and prominent reformers in order to discuss the creation of a town council in St John's. The proposals called for a mayor and fifteen-member council, with a franchise of ten pounds freehold property or twenty pounds annual leasehold.42 However, this initiative abruptly ground to a halt when a % bloc of leading merchants opposed the plans for reform.43 While Cochrane preferred the majority's view, he left the Colonial Office to determine the 'species of government' best suited to the colony. Cochrane did recommend an ad valorem duty as a means to raise revenue in the colony.44 In a September 1826 report James Stephen, legal adviser to the Colonial Office, proposed a legislative council for the colony as an alternative to 'the many inconveniences' attended by an assembly, but the British government decided to wait until Cochrane clarified the situation in Newfoundland.45 In November 1826 Cochrane informed Lord Bathurst that the populace remained heavily divided on the question of local government.46 Moreover, Henry Winton, editor of the pro-reform Public Ledger, conceded that the colony seemed unprepared for a local assembly. 'The truth is,' Winton wrote, 'that we want a few practical lessons ... before we can venture from our political leading-strings.'47 Merchants in St John's had never fully backed the early reform movement: with a faction publicly objecting to the establishment of a town council, the split between conservative and reformist parties inhibited further political change. By mid-1827 representative government still appeared to be a rather distant goal. To keep the campaign for a local legislature alive, the reformers clung to their crusade against naval government. These polemics were

The Fall of Naval Government 265

no longer restricted to anonymous pamphlets and letters to the editor. In 1827 Patrick Morris launched a full broadside against the evils of the old regime: The government of Newfoundland by the Admirals of the British fleet exhibits examples of the danger of placing uncontrolled power in the hands of any man or set of men, and affords melancholy proofs that English gentlemen - the representatives of a constitutional king - of the highest rank in the truly honourable profession to which they belonged - did, in the exercise of power, act more like Persian satraps or Turkish bashaws than men who, it is to be supposed, were well read in the constitutional history of their country.'48 The reformers kept invoking this argument as long as it boosted their cause. By doing so, naval government entered the realm of caricature and legend, alongside the fishing admirals, to form one of the core myths of Newfoundland nationalism. By the time Judge Prowse published his seminal history of the island, the eighteenth century had become a dark age of anarchy.44 TAXATION WITHOUT REPRESENTATION: M A K I N G A POLITICAL COALITION

The proposals for new taxes quickly provoked St John's merchants into political action. In October 1827 the Chamber of Commerce petitioned against the import duty 'with painful apprehension' of the effects on the depressed fish trade.50 After Cochrane forwarded the petition to London, George Robinson, a partner with Thomas Brooking and the Tory MP for Worcester, voiced the merchants' concerns in an interview with the colonial secretary, William Huskisson. The free importation of fishery supplies had long been a mercantile tenet, but Huskisson reportedly justified the new duty on the grounds that the colony now had 'to pay its own expenses.'51 Robinson then took action in Parliament and, on 30 May 1828, asked the government to postpone Newfoundland's grant for civil expenditure until it investigated Governor Cochrane's financial management. With the five-year term of the Judicature Act soon to expire, Robinson demanded a select committee to inquire into the state of Newfoundland.52 In August 1828 the Chamber of Commerce, led by Thomas Brooking, publicly denounced the import duty as a grave threat to the fishery.53 In a form of political protest, merchant vessels sailing to St John's refused to carry the mail in order to prevent Cochrane from receiving instructions on the new tax.54 The Newfoundland case reflects T.W. Acheson's model of Saint John mer-

266 The Rule of the Admirals

chants: though often fractured, merchant interests could unite rapidly when threatened with increased taxation.55 In the meantime the question of Newfoundland's governance surfaced in the English press. In an April 1828 pamphlet Patrick Morris entreated the government to grant the neglected colony a local legislature. He argued that those merchants who resisted the reform movement were 'vainly putting forth their paralyzed arms to arrest the progress of justice and civilization - they have all the will to keep us in bondage and barbarism; but, thank God, they have not the power.' 'Newfoundland will no longer be a plantation of Poole/ Morris declared, 'and her people will no longer be their slaves/56 Although the surrogate courts had already been abolished, the island's naval government remained a principal target: The absurd, and ridiculous, and often unjust and arbitrary proceedings of the surrogates are well known ... I have seen so many acts of cruelty and oppression committed at Newfoundland under the authority and pretense of summary justice, that I lose all patience even at the very mention of its being established.'57 He also insisted that Newfoundland possessed the elements necessary for representative government: a population of sufficient education and property, an environment able to support agriculture, and the means to raise adequate revenues. The pamphlet drew a rejoinder from a writer in Poole who attacked Morris's flagrant distortions, rejected notions that the island could sustain a viable agriculture, and termed the possible benefits of a local assembly too slender to alter existing policy.58 A review of Morris's pamphlet in the Sphynx nevertheless lauded the triumphant refutation of the view of Newfoundland as a country too undeveloped for a local legislature.59 In Newfoundland these exchanges received extensive coverage and editorial comment in local newspapers.60 The Newfoundland papers went much further than simply reporting on debates in England. With the creation of a bourgeois public sphere in St John's, the press exerted a formative influence on political discourse.61 In a series of editorials, the newspapers published by John Shea and Henry Winton soon transformed concerns over the proposed import duty into a cogent argument for representative government. When John Shea reported the duty in 1827, he noted the economic implications but then continued: 'such a tax on a colony like ours, without representation, would be a direct violation of the pledge given by the Government to the Colonies after the American Revolutionary War.'62 That pledge was the Declaratory of 1778, which stated that the

The Fall of Naval Government 267

king and Parliament of Great Britain would not directly impose any duty or tax on any British colony, except for the regulation of commerce, in which case the funds could be allocated only for the internal use of the colony.63 In April 1828, Shea appealed for the duty not to be 'exacted from us upon the principle of "taxation without representation.'"64 A letter by 'Mercator/ published in the Public Ledger in December 1827, argued: 'taxation without representation is contrary to the express promise of Great Britain to her colonies, and to the spirit of the British Laws.'65 Henry Winton claimed that he did not object to the duty itself, but to the absence of the 'right to collect and appropriate the sums so raised.' He concluded: 'a new and very powerful argument arises out of this subject to confirm the necessity of introducing a change in the government of this country.'66 Three days later Winton warned that under the present system the tax would be imposed 'while the people remain relatively unconscious of the indirect burthens' imposed on them.67 The press repeatedly urged the public to unite and act upon these grievances. Upon hearing that the government intended to use the duty to pay for new public buildings, Winton warned of dire consequences if the colonists could not 'agree to solicit that the appropriation of the money so exacted may be placed within their own control/68 An editorial in the Newfoundlander also affirmed that the time had arrived 'when the most active steps should be taken to endeavour to obtain for the people a voice in the appropriation' of the any duties.69 In August 1828 the Public Ledger called for a public meeting of 'qualified' individuals to recommend changes to the colony's government.70 During the fall of 1828 Winton encouraged a gentlemanly discussion and asked that 'former prejudices and prepossessions upon the subject be thoroughly forgotten.'71 A letter from 'Atomus' called for public meetings to discuss the issues and 'to sooth down all angry feelings and conflicting sentiments.' The letter held that 'on the present occasion, I consider the great object of all should be - UNANIMITY.'72 Finally, on 18 November 1828 Winton reported that objections to a local legislature had abated: 'upon that important question/ he declared, 'no obstacles are likely now to be raised/ 3 In early December 1828 the local papers printed an announcement for a meeting to discuss both the proposed import duty and the question of a legislative assembly. Strongly endorsed by Shea and Winton, the meeting marked a watershed in the colony's reform movement.74 The list of signatures on the notice and the subsequent petition for an

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assembly reveals that many of the leading merchants who had opposed a charter of incorporation in 1826, such as Benjamin Bowring, Robert Alsop, James McBride, Robert Brown, and John Brine, now publicly supported the campaign for representative government.75 Most importantly, the campaign for representative government received backing from the leadership of both the Irish Catholic community and the Protestant mercantile interests. Representing firms which would be directly affected by the new import duty the leaders of the Chamber of Commerce - Thomas Brooking, John Dunscombe, William Thomas, and Newman Hoyles - became heavily involved in the campaign for a local legislature.76 The Roman Catholic Church maintained excellent relations with the Protestant elite, and the lay leadership of the Irish community remained committed to political reform.77 Acute tensions loomed just beneath the political surface, but the cooperation between the Protestant and Catholic communities persisted largely because Catholics saw a colonial legislature as the means to secure their civil rights and to acquire a greater share of political power.78 Although the British Parliament passed the Catholic Relief Act in 1829, it was not applied to Newfoundland until after the grant of representative government.79 Driven by different impulses, then, the colony's two main factions came together in a coalition to work for a local assembly. The data contained in the petitions of the 1820s reveal that political participation was not wholly restricted to a small colonial elite. The February 1826 petition against a charter of incorporation listed an occupation for each signature and provides a rough indication of the social range of political involvement in St John's: of the 172 residents on the list, just over a quarter belonged to the elite, about 40 per cent were from the middling ranks, and almost a third were artisans. A comparison of the 1829 memorial with data on an earlier petition reveals significant political involvement among the middling and working classes of St John's. While the vast majority of identities on the 1829 memorial remain unknown, the list did contain a number of planters, shopkeepers, and artisans. The non-elite names that could be positively identified included several coopers and sailmakers, as well as a baker, wheelwright, carpenter, smith, and shoemaker.80 The public sphere in St John's appears to have been largely a male preserve. Six women signed the 1826 petition: Elizabeth McLean and Jane Dameral, both described as landholders in Riverhead; Ann Curtice, who was listed as a farmer; Mary Ann McCalman and Ann Matthews, both Water Street shopkeepers; and Emily Hill, who signed for her hus-

The Fall of Naval Government

269

Table 8.1 Political participation in St John's, 1826 Occupation

Number of signatories

Merchant Land proprietor Landowner Gentleman

40 2

Notary Public Surgeon Apothecary Shopkeeper Planter Farmer Fish culler Innkeeper Spirit dealer Schoolmaster Householder Watchmaker Cabinet maker Cooper Wheelwright Mason Smith Tailor Sailmaker Carpenter Shoemaker Painter Baker Butcher

Percentage of total signatories

28

3

3 2

2 1 13 32 8 6

41

2 3 1 1 3 1

6 1 2 4 2 3

31

19 5 1 3

3

J

Source: PANL, CO 194/72, 158, Cochrane to Bathurst 27 May 1826, enclosure 7

band, Nathaniel, an innkeeper. Only one woman, Anastasia McCarthy, was among the 498 signatories to the 1829 petition. The level of women's participation in the reform movement seems to have been lower than in New Brunswick, where women were significantly involved in petitions for political reform.81 As in Prince Edward Island, women in nineteenth-century Newfoundland were largely excluded from the public arena of formal politics, though this did not extend to the informal politics that suffused rural communities.82 Patriarchy was, as Sean Cadigan argues, actively supported by naval government,

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which took a dim view of women who overstepped their roles as obedient wives and virtuous mothers.83 Reformers may have attacked the system of naval government as unjust, but they also viewed women through the lens of their domestic responsibilities. For example, when Patrick Morris argued that Newfoundlanders had a strong moral character, he quoted at length from Lewis Anspach's History of Newfoundland: '[T]he natives, of both sexes, are equally remarkable for their ingenuity and industry; the women, besides the very valuable assistance which they afford during the season for curing and drying fish, generally understand the whole process of preparing the wool from the fleece, and of manufacturing it, by knitting it into stockings, caps, socks, and mittens. Their worsted stockings are strong, and well calculated for the climate. The women are also characterized by a steady attention to their domestic duties, and correctness of conduct in every point of view.'8* Like their counterparts in other British colonies, the reformers employed gendered language to construct arguments for political rights.85 In reacting to a perceived violation of political rights, William Carson argued that 'as Men, as British Subjects they hoped for better treatment.'86 The reform movement encompassed a variety of arguments and political traditions as it evolved in a dynamic colonial environment. The situation in Newfoundland was far from unique: virtually every colony throughout British North America experienced similar political debates in the 1820s and 1830s, particularly over the twin issues of revenue and representation.87 As elsewhere in the Empire, the reformers used language similar to trends in Britain, but the island's reform movement did not develop solely through the importation of British reform ideology. Evidence of a vibrant public discussion in St John's contradicts Keith Matthews's assertion that the relative harmony after 1828 was the result of an ascendancy of a pro-reform elite of recent immigrants who imposed their own agenda on Newfoundland politics.88 By the 1820s the burgeoning public debate in St John's inhibited the political hegemony of a single clique. Fuelled by anxieties over import duties, the reform movement had transformed into a fairly broad-based coalition united against 'taxation without representation.' And with the renewed drive for a local assembly came a nativist voice. In a June 1828 editorial John Shea commented sarcastically that it was 'very kind of John Bull, truly, to allow us potatoes and salt duty free.'89 Moreover, Henry Winton argued in October 1828 that Newfoundland 'must be under the legislation of a body of men who are resident in the colony.'90 A letter from 'A Native' opposed a local legislature and the

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influence of those with 'no stake in the country.'91 In response to such concerns, William Thomas later asserted during a public meeting: 'I am not a native of this island, Sir, but my father was, and my children are natives. I have resided here nearly 30 years, and I look to this island as the future residence of myself and my family. To Newfoundland I am indebted for the property I possess ... I am, therefore, attached by strong ties to Newfoundland.' 92 By protesting the proposed tax in 1828, Thomas was protecting his Newfoundland property. The meeting to discuss taxation and representation, held 18 December 1828 in St John's, involved some dissension but ended in unanimity. It began with a brief conference, dominated entirely by merchants, which resolved to petition against any import duty. William Carson then began the meeting on a local assembly by stressing the need to end the colony's oppression, but the issue of taxation dictated the ensuing discussion. Several merchants noted that if the government went ahead with the duty, then the colony needed a voice in its appropriation. Thomas Bennett reportedly declared: 'if they did not tax us, there would be no necessity for the institution of a House of Assembly,' and he called for an adjournment until the tax became official. William Thomas maintained the need for a legislature but also said he was 'no enthusiast' about the island's agricultural potential. Chaired by William Carson, the committee appointed to prepare a petition included members from both the older reform movement, notably Patrick Doyle, and the merchant elite, represented by William Thomas.93 The resulting petition stressed the colony's economic development and argued that compared to other colonies the island deserved, and could financially support, its own legislature.94 It also argued that the new import duty was unconstitutional because it contravened the Declaratory Act of 1778, which the reformers again quoted at length.95 In taking this course, they were following a well-established tradition in contemporary reformist rhetoric.96 Yet in spite of its recent growth, the reform movement met with little success throughout 1829-30. Governor Cochrane had already advised the Colonial Office to oppose the agitation for reform and to extend the Judicature Act for another year.97 In February 1829 a report from the Poole merchants urged the government to repeal the provisions for local government in the colony.98 Despite repeated attempts, George Robinson failed to persuade the government to form a parliamentary committee of inquiry on Newfoundland.99 The Public Ledger lamented that the petitions had 'failed to become the subject of serious delibera-

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tion by the government.'100 Cochrane reported in late 1829 that the planned duty on imports continued to generate considerable excitement: 'Unfortunately, as the various memorials in the Colonial Office will show you, there is mixed up with the question of taxation, that of colonial representation.' He explained that 'while one party pray to avert taxation because they cannot bear it, another entreat a legislature on the ground that they are equal to provide for their own expenses.' In order to placate the agitators Cochrane recommended a 'work popular in its character,' that is, road construction, funded from the new tax.101 A series of letters in the local press nevertheless formed a renewed political exchange which kept the question of a local legislature in front of the St John's public. In the first of a series of letters, Teregrinus' pleaded that 'without the fostering aide of a local legislature, it is vain to talk of the improvement of the colony.' Yet other letters by Teregrinus' adopted the language on taxation and proclaimed: 'Taxation and representation are inseparately united: God hath joined them; no British Parliament can separate them; to endeavour to do so is to stab our vitals.' In response to Teregrinus,' 'Hospes' questioned the 'bare assertion' that a legislature assisting agriculture would cure all the colony's ills. 'Quis' countered with a call for unity - 'He who is not for us is against us' - and cited the probable good brought by a legislature. Finally, 'Hospes' warned of merchant domination, stressed that all of the people should have a vote, and added a very perceptive comment on Teregrinus': 'Your writings are like a Jack-of-all-trades shop.'102 On 15 September 1830 the reformers held a public meeting to discuss solely the issue of a colonial assembly. As a sign of the reform movement's growth, the meeting took place on the military parade ground in St John's. The day before the meeting Winton repeated rumours that a cabal of merchants had resolved to support a town council instead of an assembly.103 Though the report proved unfounded, it illustrated the tensions within the reform movement. Open opposition later appeared when an editorial in the Royal Gazette argued that Newfoundland could not afford a local legislature.104 The meeting nevertheless went smoothly; in an apparent effort to represent the two main factions of the reform coalition, the Public Ledger printed the addresses given by William Thomas and John Kent, a new leader of the Catholic community.105 Thomas reiterated the threat of import duties and, referring to the current gossip, asked rhetorically, 'would a Town Council put a stop to this tax?' Kent argued that Newfoundland needed a legislature to ensure its economic development, and concluded that 'the lovers of

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freedom ... will support our cause.' He also stressed that the political discussions enjoyed 'a nearer approach to unity than at any previous period/106 The meeting then appointed a committee, chaired by William Thomas, to prepare a petition for a local legislature and to arrange for a delegation to present it to the British government.107 Led by Thomas Brooking, the delegation arrived in London in December 1830 to find a new Whig government; after conferring with George Robinson, Brooking arranged for an interview with the king. On Christmas Eve they presented the petition, signed by over two thousand residents, to the colonial secretary, Lord Goderich. While Goderich affirmed the importance of Newfoundland, he neither voiced an opinion on the question of local government nor committed the government to any action.108 The delegation in London nonetheless believed that the meetings had boosted their cause. When news of the interviews reached Newfoundland the Public Ledger observed that 'the present government are likely to coincide with the views of the inhabitants/109 During a meeting of the Benevolent Irish Society in St John's, the gathering toasted the triumphant efforts of the reformers. Amid the cheers William Carson proclaimed there was every reason to expect that the authorities would grant a local legislature and thereby supply the constitutional rights needed to 'consummate our happiness/110 COLONIAL POLITICS IN LONDON

Despite such optimism, the drive for representative government soon bogged down again. In June 1831 Lord Howick, the under-secretary for the colonies, reaffirmed the official policy that local conditions prevented the establishment of a legislative assembly: the island's society had not developed sufficiently to support electoral politics.111 While Howick's pronouncement met with astonishment in Newfoundland, it accorded with the broader trends throughout this period. The Whig administration's commitment to political reform in Britain did not necessarily extend to the colonies. Both cabinet and Parliament typically paid little attention to colonial affairs, particularly during the intense debates over the Reform Bill in 1831-2. And Lord Howick, who wielded the real power in colonial affairs, remained ambivalent towards demands for colonial self-government. Within the Colonial Office, R.W. Hay's tenure as permanent under-secretary epitomized conservatism.112 Perhaps most importantly, the reform movement had failed to

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neutralize Governor Cochrane's influence. In April 1831 Cochrane advised the Colonial Office against making any major changes to the existing political system.113 Instead of an assembly he recommended the creation of a legislative council to enact laws for the internal government of the island.114 And in July 1831 the Colonial Office informed Cochrane that the arguments against granting a local legislature were 'so strong as to render it unlikely that the government will adopt such a measure/115 Meanwhile George Robinson struggled to keep the colonial reform movement alive in London. In July 1831 he again opposed the annual grant to Newfoundland on the grounds that the absence of a local assembly rendered its expenditure unaccountable. Robinson then quickly advanced three arguments for granting the colony a local legislature: the colony's economic development necessitated a local assembly; the Newfoundland people only wanted the legitimate right to control their own affairs; and the grant of a local legislature would eliminate the colony's cost to the British government.116 When Howick defended the government's policy, Robinson responded: 'The people of Newfoundland have instructed me to say, that if you will grant them a local legislature they will not again ask for money. Here, then, is an inducement to alter the present system, under which it is impossible for you to tell what you pay for it.117 Though Robinson was chided for his 'coarse game/ a number of MPs took the bait and voiced their indignation over the colony's financial mismanagement. By tapping into a theme which would draw an immediate response, Robinson reignited the case for a local legislature.118 When news of the debate reached Newfoundland, it revitalized the local reform movement. On 29 September 1831 the reform committee convened an open meeting in St John's to discuss its next course of action. The application to hold a public assembly reveals that the coalition of the mercantile elite and Catholic reformers was still holding: Brooking, Thomas, Row and Bennett signed alongside Morris, Kent, Doyle, Beck and, of course, Carson.119 Held on the parade ground in St John's, the open meeting attracted a cross-section of the population. Henry Winton reported that the assembly involved 'disreputable personalities' and declined to print speeches that served 'simply to amuse the public/120 Unfortunately, when people outside of the elite become visible, contemporary sources silence their voices. We can only conclude that, first, the 'lower orders' were present in sufficient numbers to attract attention (and disapproval) and, second, some speakers were

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targeting a popular audience. In order to project a respectable image of the reform movement, Winton later printed a speech given by William Row. Row's address noted that while 'but one opinion prevailed' on the issue of local government, it remained 'highly important that this unanimity should continue, as on it must greatly depend the final success of our efforts.'121 The meeting's other leading speeches reinforced the reform movement's established themes. William Thomas focused on the question of taxation and the need for an assembly to control the colony's revenue. John Kent concluded his appeal for a local assembly by noting that 'the press - the index of public feeling, the mirror of the people's mind loudly proclaims its necessity.'122 Carson and Morris then commented on the great strides made by the reform movement in the long struggle to overcome the colony's oppression. The meeting observed 'with a degree of satisfaction the admission made in the House of Commons ... that the wealth and intelligence of the people of Newfoundland have entitled them to have a direct control in the management of their own affairs.' However, in an apparent contradiction, the next resolution noted that 'the depressed condition of our trade and fisheries, and the infant state of our agriculture, absolutely require the fostering care and encouragement of a local legislature.'123 Yet the reformers had no difficulty with this paradox, for an eclectic mix of arguments characterized the discourse surrounding the campaign for local government. The themes of poverty and prosperity became intertwined into a vision of a local assembly as the ultimate panacea for Newfoundland.124 As the St John's reformers observed the growth of the campaign for a legislature, they increasingly discussed the issue of participation from outport communities.125 The outports had in fact petitioned for reform as early as 1821, and in Conception Bay Robert Pack was an early proponent of a colonial legislature.126 In 1829 the Conception Bay Mercury strongly endorsed a local assembly as a vehicle for improvement.127 And a letter from 'An Out-Harbour Man' asked Winton to specify the reformers' plans for the operation of a local legislature.128 But an organized campaign for a local legislature only emerged in the outports in 1831. Attached to the recent St John's memorial were petitions from Carbonear, Port de Grave, Old Perlican, and Brigus. The petitions massed population and trade statistics to illustrate rural economic development to prove that St John's was not the colony's only town of importance.129 Nonetheless, meetings held in Burin and St Mary's underscored the depressed state of the fishery and, as the St

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Mary's meeting noted, the hope for 'practical and beneficial results' from a local legislature.130 In 1831-2 the island endured a particularly harsh winter which saw outbreaks of looting for food.131 Unknown to those in Newfoundland, however, George Robinson had already pulled off a pivotal manouevre in the House of Commons. After consulting with Joseph Hume, Robinson introduced a motion concerning Newfoundland in the House of Commons at a time shrewdly calculated to achieve maximum publicity. On 13 September 1831, the evening reserved for the third reading of the Reform Bill, Robinson interrupted the proceedings to state that the government's neglect of Newfoundland had compelled him to speak on a local subject. After reading the colony's petitions he launched into three arguments for the establishment of a local legislature. First, he cited the colony's extensive trade and large population relative to other colonies with representative government. Second, Robinson argued that the imperial government's financial mismanagement had caused the fishery's state of great embarrassment and distress. Finally, Robinson referred to the practical difficulties entailed with Parliament's 'meddling with the details of colonial legislation.' Robinson concluded with a motion for an address to the Crown asking for a local assembly similar to the other North American colonies and in accordance with the principles of the British constitution.132 In response Lord Howick complained of the embarrassment caused by the timing of Robinson's motion. Howick nevertheless went quickly onto the offensive and noted that a meeting of Poole merchants had declared against the establishment of a local assembly. He reiterated the British government's position that Newfoundland's uneven development made it 'practically impossible to have an assembly really representing the ... inhabitants of the island.'133 Following some discussion Joseph Hume declared that any further delay in the establishment of a local legislature would be 'extremely prejudicial' to the interests of both the island's populace and the British government. He then advanced in rapid succession three distinct arguments in favour of a local legislature: 'What is it that 80,000 or 90,000 British subjects ask for? It is that [1] they may be relieved from the arbitrary sway of an individual, and that they may be allowed to manage their own affairs; and, when they ask for this, they undertake [2] to relieve this country from every portion of the expense which has hitherto been incurred in the government of Newfoundland ... But let expense be what it may, I contend that [3] it is impossible for any body of men in Downing-street

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properly and satisfactorily to govern a distant and populace colony like that of Newfoundland.' Next, Hume targeted the neglect of the colonists' civil rights: The present government profess to be guided by liberal principles - let us see if they will act upon them.' Hume placed the onus squarely on the government and, therefore, transformed the issue of Newfoundland's governance into a question of the credibility of the Grey administration's commitment to reform.134 Lord Althorp, the chancellor of the Exchequer, responded by recommending a committee of inquiry as the proper forum to discuss the colony's government. But with Hume's support, Robinson's motion soon elicited interest in the crowded House. Henry Labouchere, a prominent Whig and an acquaintance of Lord Howick, declared that Althorp's suggestion was inadequate because Robinson's motion concerned an issue too important for a committee.135 Labouchere argued that Newfoundland deserved a constitution 'founded upon those broad principles of British liberty which have been extended to the other colonies.'136 Forced on the defensive, Lord Howick professed that he had merely noted the difficulties entailed with giving Newfoundland an assembly. Howick's defence met with a barrage of reform rhetoric in which Daniel O'Connell argued that the 'great principles of liberty' should govern colonial issues. Robinson then declared that he would withdraw his motion if the government guaranteed to appoint a committee of inquiry on Newfoundland. In response Lord Althorp stated cryptically that the government would 'give to that colony as much freedom and independence as shall be considered consistent with its own prosperity and security.'137 In October 1831 Governor Cochrane travelled to London for consultations at the Colonial Office. According to later testimony, Cochrane believed that the interviews had gone well.138 Yet Lord Howick had already instructed James Stephen to report on the type of legislature best suited for Newfoundland. Released on 19 December 1831, Stephen's report recommended a blended assembly, which would include elected representatives and officials appointed by the governor. Emphasizing the problems that bicameral legislatures had wrought in other colonies, Stephen claimed that a single legislative body, like the one established in Demerara, would engender greater harmony and help to balance the colony's political factions.139 On 22 December 1831 Thomas Brooking arrived in London and had a meeting with Lord Holland early in the new year. Pleased with the interview, Brooking informed William Thomas of his progress and mentioned a rumour,

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which was probably accurate, that the British government had already made a decision regarding Newfoundland.140 Finally, on 25 January 1832 Goderich told Brooking during a private meeting that the government had resolved to grant the colony a local legislature. Lord Howick also wrote a letter of congratulation to Robinson, which claimed that the government had resisted making any promises simply out of anxiety not to raise false hopes.141 After more than a decade of struggle, the Newfoundland reform movement had at last achieved its ultimate goal. Parliament passed legislation confirming the powers of the new assembly, and the first elections were scheduled for the autumn of 1832.142 CONCLUSION A number of factors shaped the development of local opposition to naval government. The reform movement developed through a symbiotic process in which an inherited political culture interacted with colonial conditions. When the reformers dealt with local issues, such as structure of the justice system, they viewed representative institutions as the proper solution to local problems. Newfoundland's mercantile elite initially opposed the reform movement, and then publicly divided over the question of local government, but the Chamber of Commerce nevertheless maintained effective leadership of the St John's merchant community. During the 1820s a bourgeois public sphere emerged in St John's and acted as a forum for reformist ideas. Although some people from outside the St John's elite appear to have been involved in the reform movement's activities, the local press worked diligently to maintain an image of respectability. Following established imperial policies, the governor and the British government both opposed granting Newfoundland a legislative assembly. Public opinion in St John's evolved in a dynamic colonial environment into an eclectic yet cohesive collection of arguments. While William Carson employed a sharp common rhetoric based on notions of the rights of British subjects, Patrick Morris relied on the emotive imagery of persecution suffered under despotic fishing admirals and naval governors. Carson and Morris both advanced a model of economic development in which a local assembly appeared as the key to prosperity. Reform rhetoric was never uniform, as a variety of notions permeated the malleable body of the campaign against naval rule. During the Lundrigan affair, reformers marshalled arguments of the rule of law, for example, while the view of an assembly as a panacea appeared in later petitions from outport communities. The various rhe-

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torical strands within the reform movement came together during the 1828 crisis over taxation. After 1828 merchant-driven concerns over fiscal responsibility, and a nativist voice for local control of government, joined the public discussion. In effect, the campaign for representative government had become all things to all people. Although one cannot identify a single direct cause for the grant of an assembly in 1832, three developments were pivotal. First, in 1828 a proposed duty on imports prompted the Chamber of Commerce to mount a political protest against government policies. The colony's leading merchants soon became actively involved in the reform movement, and this led to the formation of a viable political coalition. Second, through a series of editorials and public letters the local press sponsored a vigorous campaign against 'taxation without representation.' Active participants in the reform movement, Henry Winton and John Shea pushed for public meetings and a united campaign for a legislative assembly. Finally, George Robinson represented the reformers' case in Parliament and, arguing that a local legislature would eliminate the colony's cost to the British government, obtained the backing of Joseph Hume. In September 1831 Robinson managed, in a shrewdly timed motion in the House of Commons, to make Newfoundland's governance a public litmus-test of the Whigs' liberalism. Forced to pledge a committee of inquiry, the Grey administration commissioned a Colonial Office report and, in a move that avoided further embarrassment, granted Newfoundland representative government. The final element ensuring the success of the campaign for a local legislature was its ability to avoid divisive issues. The reformers were able to use diverse and sometimes contradictory arguments because their movement focused on a single, simple goal: the achievement of an elected assembly. Contentious issues respecting how actually to govern the colony remained largely outside the political discussion. With the advent of electoral politics, however, the struggle for power within Newfoundland had only just begun. The coalition of interests which had held together since 1828 came apart at the seams soon after the first local elections, and for the subsequent three decades bitter sectarian factionalism dominated Newfoundland politics.143 The establishment of representative government had marked the end of an era in Newfoundland history. Although the island's government continued to rely periodically on warships to help maintain law and order, the last vestiges of naval government had been swept away, as the Royal Navy became merely an ancillary to civilian rule.144

9

Conclusion

This study began with the premise that naval government needs to be assessed in the context of eighteenth-century Newfoundland. It has rejected the view of nineteenth-century reformers who condemned naval rule for their own political purposes, as well as those modern scholars who have accepted such polemics at face value. Although historians have overturned many persistent myths concerning the island's economic development, the legacy of the Whig perspective continues to skew the historiography: the simplistic image of anarchy and quarterdeck justice remains a powerful nationalist legend. With the recent publication of a new edition of Judge Prowse's History of Newfoundland, this view continues to influence the way Newfoundlanders conceptualize their past.1 By evaluating the eighteenth-century legal regime according to modernist standards of state formation, historians have imposed an anachronistic model on an entire era of Newfoundland history. As a result, we are left with the presumption that the island was a uniquely failed society because its government did not evolve in the same manner as colonies such as Massachusetts or Nova Scotia. It is still generally accepted that naval government was by its very nature inherently primitive and lawless.2 In testing these assumptions, the first concern of this book has been to reconstruct the rise and fall of a legal system that spanned two centuries. This undertaking bears not only on Newfoundland historiography, but also on the broader study of the pre-industrial colonial state. It pro-

Conclusion 281

vides an instructive case study through which to re-examine the function of customary sources of law and authority. The development of naval government in Newfoundland demonstrates the need to widen the orthodox view of regulation to include custom and common law as potent legitimizing forces. Statute law was never the dominant means through which state power was organized. Customary arrangements could function at least as effectively as the panoply of English law established in other colonies; the absence of the standard array of formal institutions did not necessarily produce an enfeebled state. Newfoundland was far from unique in this respect: all British colonies had informal networks that played key political roles; and the military at times became involved in the administration of law in British territories.3 What set the island apart was the fact that these customs - e.g., the governor's court, the surrogate system, and the ad hoc local committees - substituted for the legal regimes entrenched elsewhere in written law. Nonetheless, the model of state formation cannot be diluted so far as to include every conceivable source of local authority. Naval government had recognized and enforced boundaries: clear divisions existed between legitimate forms of authority that fell within the ambit of the state and extralegal actions prohibited by governors. Governors and surrogates encouraged private arbitration where possible and were careful not to upset existing structures of social control, but they never condoned whippings carried out summarily by masters against their servants. The importance of the Royal Navy cannot be overemphasized. Warships on the Newfoundland station provided the infrastructure, personnel, legitimacy, and material force needed to administer law. This is not to suggest that the colonial state and the Royal Navy in Newfoundland were one and the same thing. The judicial regime relied heavily upon civil magistrates, particularly the commissioners of oyer and terminer and the justices of the peace, who presided over the assizes and quarter sessions. It was a cooperative system of civil and naval authority: magistrates and officers never became rivals for power. The former performed a role similar to their counterparts in other British colonies, serving as the bulwark of local government and the only legal authority after the naval squadron left each autumn. Individual initiative marked the administration of justice - some magistrates adhered closely to statutory law while others did not - but with few exceptions they upheld the authority of naval government. As distinct as early Newfoundland was, those committing offences found themselves confronted with per-

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sonnel and processes similar to those found throughout the British Empire. The most significant difference between magistrates in Newfoundland and those in other colonies was the fact that the island's justices could count on the regular presence of the Royal Navy to reinforce their authority. Arguably the most powerful military organization in the Western world, the Royal Navy conferred unrivalled material and symbolic power. It also acted as a check on the magistracy, for governors did not hesitate to dismiss justices of the peace when faced with serious complaints of misconduct from the outport districts. The history of pre-1832 Newfoundland demonstrates the danger of studying law and government solely from the perspective of statutes and imperial policy. It echoes an argument made by C.A. Bayly that imperial treatises and official memoranda are poor guides to exploring social and political developments, since there are distinct limitations to legal history based on what officials tell their lawyers they are doing.4 For the historiography of Newfoundland, the risks are doubly high because of the large gap that existed between imperial policy and local practice. In other words, the impression created by the statute books is directly at odds with the view from the archival manuscripts. This does not mean that the island was subjected to acute localism; the legal cultures of St John's and the outports had far more in common than they had differences. Analysis of the district records, assize minutes, and colonial correspondence indicates a remarkable uniformity when considered in light of contemporary maritime conditions. Few doubts seem to have existed in the minds of governors or magistrates that they were participants in a single political jurisdiction. Whatever differences they had were offset by the shared traditions provided by the common law. From the perspective of local magistrates, managing disputes between masters and servants was arguably their single most important task. The protection of property remained a secondary problem, largely because merchants were not particularly vulnerable to the threat of larceny for most of the year. In effect, criminal law and the law of master and servant merged to form a single legal code that relied on exemplary corporal punishments to discipline unruly servants. When the structure of the island's fishery transformed from a reliance on wage labour to family-based operations, the demands on the judicial system changed accordingly. Coupled with a broader shift in sentiment away from physical punishment, and the rise of bourgeois culture after 1815, these developments placed increasing strains on the penal regime

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that operated under the aegis of naval government. Placed in this context, legal culture cannot be adequately understood outside of the social relations of production and exchange. Specific incidents that skew the overall pattern, such as the Ferryland affray in 1788, have to be assessed through micro-studies of the parochial politics that marked outport life. Reception and adaptation of institutions are best viewed through the lens of colonial society: salient features in the administration of justice appear as unique or inexplicable unless examined in terms of the social make-up of fishing communities. For example, the prominence of surgeons in the island's judiciary was a by-product of their place in the eighteenth-century fishery. Surgeons provided medical services in nearly every outport community, making them the closest thing to a professional class in Newfoundland. Permeating this study has been the notion of what contemporaries called the custom of the country. It has been relevant not only for the specific customs it alluded to at the time, but also for the broader concept that eighteenth-century Newfoundland had its own legal culture, one which naval surrogates readily identified and incorporated into their decisions. While English common law shaped the island's legal regime, lex loci comprised the defining characteristic of governance. Customs were not popular traditions but rather forms of law developed by and for the magistracy and those with access to the circles of power. Law was in turn moulded by contestation: the struggle for authority in the 1730s had a lasting impact on state formation. Compromise arrangements made between local factions, and the acceptance of a hybrid magistracy, set the conditions for the reliance on naval authority. Seen in this light, legal pluralism was more a dynamic within the law than it was a matrix of codes on the boundaries of law and society.5 The island's legal system drew together written and unwritten sources of law: prerogative writ, statute, common law, and local custom. Eighteenth-century courts relied upon an amalgam of customary practices and legal regulations that mutually reinforced a single legal regime. Law was an expression of social power. Whether in the courtroom, at the whipping post, or around the scaffold, those living in Newfoundland were reminded of who ruled whom. Punishment and mercy were dispensed according to the threats perceived by the propertied classes. Merchants and planters had a reputation to lose; servants had a character to prove. The gulf between these two worlds was symbolically and materially displayed through the discretionary application of punish-

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ment. The courts played a formative role in shaping legal culture. The social cleavage of religion theoretically transcended economic divisions, but prior to 1815 it reinforced existing power structures. Although active official persecution of Roman Catholicism was episodic, magistrates used punishment to assuage fears of Irish sedition and unrest. Public hangings of Irish offenders formed political statements designed to affirm the authority of both the naval government and the St John's elite. In the years leading up to Catholic Emancipation, sectarian tension remained largely beneath the political surface, particularly during the reform coalition of 1828-32, but the grant of representative government unleashed a new local struggle for power. It would take another generation before Catholic politicians began to exert influence on a par with their Protestant counterparts. All these events took place in a trans-Atlantic context. To stress the need to consider events in Britain and Ireland entails much more than merely acknowledging the importance of the imperial system. Seasonal migrations of men and women across the Atlantic involved a cultural transference, but this was not a one-way process. Voyages from ports such as Poole and Waterford to Newfoundland were short by most colonial standards: crossings rarely exceeded four weeks. Equally important, sailing to Newfoundland was not comparable to the cultural experience of American colonists, many of whom considered the move to be a decisive break with the Old World.6 From the perspective of state formation, the close ties merchants and planters maintained with Ireland and England had a direct impact on the making of imperial policy. When fish merchants sought to block an initiative or to push for reforms, they turned to London, where they gained access to the corridors of power. Political machinations in England played a significant role in Newfoundland, especially in the 1730s and again in the early 1830s. A crucial difference separated the course of politics before and after 1815. Whereas the absence of a bourgeois public sphere had afforded governors and magistrates a remarkably wide latitude throughout the eighteenth century, the establishment of an independent press changed the rules of the game entirely. The growing public sphere spawned a plethora of new forms of social regulation and political expression, but the emergence of an opposition press in the 1820s was by far the single most important development. Relying upon newspapers and pamphlets, the colony's reform movement successfully targeted naval government as the root of all the island's problems. Once cast as the very

Conclusion 285

bastion of enlightened justice, the Royal Navy became fodder in the campaign for representative government. Reformers used their critique of naval government as a trope around which they could rally public opinion and undermine the intransigence of the Colonial Office. The British government issued the grant of representative government with much reluctance. As one English commentator put it in 1829, if the Newfoundland fishermen were given an elected assembly, 'we shall next hear of the liberated negroes of Sierre Leone/7 Behind all of these events and patterns rested the twin factors of force and legitimacy. Without force - in essence the material means to impose a political will and legal jurisdiction - local government would never have grown significantly in the eighteenth century. This criterion was met by the Royal Navy, the engine of law for 130 years. With up to twelve warships stationed around its coasts, Newfoundland experienced a higher degree of military governance than most colonies in British North America. To be sure, this regime was seasonal, but so too were many aspects of British justice generally, such as the assize circuit. Naval officers sustained the legitimization of governance: they brought the majesty of law to St John's and the outports. Able administrators, they presided over the birth of bureaucracy. The revolution in government initiated by Governor Rodney in 1749 transformed a rather nebulous judicature into a coherent legal system. This is not to suggest that governance in pre-1832 Newfoundland was socially just; the inequities noted by Patrick O'Flaherty were indeed by-products of the lack of representative institutions.8 Local courts never operated in an abstract setting: eighteenth-century Newfoundland was, above all, a face-to-face society in which personal relations, appearances, and character determined where one sat within one's caste. It would be a mistake to assume that those with little social currency automatically deferred to the elite or meekly accepted the rule of the magistracy. Despite the trend in recent historiography to downplay labour discipline, the eighteenthcentury legal system worked first and foremost to protect propertied interests. Servants who disobeyed their masters or displayed signs of insolence were liable to be corporally punished. As we have seen, this was no idle threat. Magistrates ordered fishermen to be publicly whipped with the cat-o'-nine-tails for a range of transgressions. The reliance on customary sources of authority in eighteenthcentury Newfoundland did not mean that the island was somehow anomalous or inherently backward. The diverse colonies and territories which comprised the first British Empire never adhered to any

286 The Rule of the Admirals

uniform mode of development; the decentralized imperial system exerted a relatively low level of political control and legal coercion over local societies; and the constitutional doctrine of customary powers figured prominently throughout America. As Jack Greene has pointed out, it was because local customs had become so firmly established in colonial America that the imperial incursions of the 1760s met such strident opposition.9 Eighteenth-century Newfoundland reveals how formal and informal sources of authority can coalesce to form an effective system of governance. It demonstrates the malleability of the common law tradition in the face of a social environment that demanded significant adaptation to local conditions. The case of Newfoundland points to the need for Canadian historians to rethink the chronology of politico-legal development as well as the model of state formation. As Allan Greer and Ian Radforth have noted, Canadian historians have long been particularly interested in the mid-nineteenth century and the expansion of executive power in British North America.10 The example of Newfoundland indicates that state formation in the eighteenth century cannot be relegated to an ancillary role in the broader narrative of Canadian political history. Government prior to the rise of the industrial state involved much more than simply the local application of paternalist authority.11 Naval rule in Newfoundland bore little relation to the civil regime that succeeded it - executive authority actually became considerably weaker after the grant of representative government - and eighteenth-century legal culture needs to be assessed on its own terms. The rise of naval government offers a key to understanding Newfoundland's seemingly anomalous development: propertied interests and colonial authorities did not support the establishment of a legislative assembly in the eighteenth century because they did not need it. The emergence of a customary legal regime was a pivotal factor in the socio-economic development of Newfoundland, where the fishing admirals system did not meet the local needs. The limited administrative apparatus both inhibited governors' abilities to act unilaterally and encouraged the process of working with magistrates and merchants. With neither an elected assembly nor an independent press to monitor or question decisions, governors were relatively free to act as they saw fit. They had no vested economic or political interests to protect locally, aside from their naval squadron, and were spared much of the parochial politics that eclipsed many colonial governments. Since their appointments were usually for three years - prior to 1818, they

Conclusion 287

resided at St John's only from mid-summer until the departure of the naval squadron in early autumn - they seldom embarked on overly ambitious projects. Accountability to London tempered this political autonomy. As Governor Milbanke discovered in 1789-91, the British government periodically rejected local initiatives, though it rarely reprimanded governors. A generation later, Governor Cochrane also had to be careful in his dealings with London, but he faced an opposition movement for the first time in the island's history. In the 1820s the St John's press scrutinized the administration of law in a manner unimaginable in the eighteenth century, as political reformers attacked the legitimacy of naval rule. Yet one element transcended the eras of Milbanke and Cochrane: pragmatism guided the implementation of imperial policy to a far greater degree than statutes or mercantile tenets. This leads to the larger issue of defining the parameters of state formation. To view governance from the altitude of parliamentary statute overlooks much of what was happening on the ground. The complex means through which social power was organized in colonial societies demands that historians weigh imperial policy and local practice in equal measure. As Michael Braddick contends, the pre-industrial state was never a purely institutional phenomenon.12 In other words, it comprised much more than the sum of its bureaucratic parts. Given the range of available resources and the nature of local conditions, the seasonal judiciary of the naval governor and his junior officers provided a remarkably effective administrative regime. Thus informality (which F. Murray Greenwood and Barry Wright see as characterizing the administration of law in pre-1832 Newfoundland) does not denote ineffectiveness.13 In the absence of a local legislature, the British government tailored the law to suit available legal resources and the demands of propertied interests. When Parliament passed new legislation in 1791-2, it made the minimal changes required for a functional judiciary and entrenched legally the system of surrogate courts that had long operated customarily. The adaptability of English legal culture and the common law facilitated the emergence of a legal system that met the needs of those in power. Finally, this study bears on the problem of Newfoundland's place in the British Empire. As David Hancock has argued, decentralized opportunism characterized the first British Empire. English colonies developed under a system different from that imposed in other empires: it was fundamentally agricultural in nature, organized around settlement

288 The Rule of the Admirals

by Europeans, and governed by representative institutions staffed by civilian authorities.14 After the American Revolution, the British Empire became increasingly divided between its remaining colonies in North America and others, mostly in Asia, where militaristic oligarchies governed non-European societies. Yet the case of Newfoundland belies the assertion that the Empire can be divided schematically into colonies with representative government and civilian courts (where settlers of British origin formed the controlling majority), and those with autocracy (where colonial elites ruled over predominantly non-European peoples).15 Newfoundland was populated overwhelmingly by servants from England and Ireland, but its authoritarian system of naval government persisted well into the nineteenth century. As late as 1818, fishermen were liable to be whipped for minor offences, and naval surrogates continued to administer law until 1824. As in other British colonies where labour was organized around a staple industry, servants toiling in the cod fishery were kept in their place by an autocratic regime which did not shrink from using violence and intimidation. Their experience reminds us that we must not conflate the growth of judicial authority with the goal of social justice.

Notes on Primary Sources

A R C H I V A L RECORDS OF THE COURT OF OYER AND T E R M I N E R , 1750-91

There is no archival cataloguing for the records of the court of oyer and terminer. Rather, the minutes are scattered throughout two series of government documents: the Colonial Office Papers, and the Colonial Secretary's Letterbook. The governor ordinarily appended the court proceedings to his returns to the Board of Trade's heads of inquiry, dispersed in the Colonial Office Papers [CO 194], housed at the Public Record Office, with copies at the Provincial Archives of Newfoundland and Labrador, and the National Archives of Canada. These minutes were sent, along with the returns to the fishery, directly to the secretary of state, usually as soon as the governor's flagship had anchored at Spithead after returning from Newfoundland. Copies were occasionally sent directly to the Admiralty. The records were also copied locally into volumes of the Colonial Secretary's Letterbook [GN 2/1/A], housed only at the Provincial Archives of Newfoundland and Labrador. These proceedings were entered by the governor's secretary after the assize session had ended. Where complete transcripts were made, the minutes entered into the Letterbook appear to have been identical to those sent to the secretary of state, though differences in handwriting confirm that separate clerks were at times employed. These two primary sources often provide

290 Notes on Primary Sources

identical sets of records. However, the Colonial Office Papers have gaps for the 1750s, and the Letterbook mainly has only summaries for the 1770s and 1780s. Manuscript materials provide the only reports: there was no newspaper in Newfoundland until 1807. The assize minutes vary considerably according to the initiative of the clerics, the judges, and the governor. While some proceedings contain a complete transcript of every trial - including grand jury indictments, depositions, testimony, charges to the trial jury, and the judges' reports - others supply only a summary of the cases of those offenders sentenced to death. There are no discernable patterns in the quality of record-keeping, and each case had to be traced individually in the manuscript sources. Sampling was not employed. As much information as possible was gathered on each trial, though gaps undoubtedly remain. For example, in 1784 the governor referred to the cases of several defendants who were acquitted but whose trials are not cited in any of the records. But nearly all of the punishments meted out by the courts upon convictions at the assizes appear to have been recorded in either the Letterbook or the Colonial Office Papers. The following list contains all of the known references to every trial at the court of oyer and terminer. The assize records are broken down into four categories, under the heading of'cases heard': Yes: Partial: No: Unknown:

Cases came to trial and full proceedings have survived for study. Cases were heard, but only partial notes or summaries are available, either because no full transcript was prepared at the time or none has survived for study. Assize session convened, but there were no cases to be heard and the grand jury returned no true bills. Assizes terminated without any offender being brought to trial. It cannot be determined whether an assize session was convened for that year, whether it convened and no cases were heard, or whether the proceedings were kept and have not survived.

Unless otherwise noted, all of the archival citations refer to materials housed at the Provincial Archives of Newfoundland and Labrador. The first archival entry for each year denotes the set of records cited in the text of the book.

Notes on Primary Sources 291 Assize Year 1750

Cases Heard Yes

1751

Yes

1752

Yes

1753 1754

No Yes

1755 1756 1757 1758 1759 1760 1761 1762 1763 1764 1765 1766 1767 1768 1769 1770 1771 1772

1773 1774 1775 1776

Archival Location and Notes €0194/12,184-91 GN 2/1/A, vol. 1,181-97 CO 194/25, 92-6 CO 194/13,14-23 CO 194/23, 270-310 G N 2 / 1 / A , vol. 1,283-304 CO 194/13, 50-69 CO 194/23, 270-310 GN 2/1/A, vol. 2,1-31

CO 194/13,153-171 CO 194/23, 270-310 GN 2/1 / A, vol. 2,135-42 and 171-81 GN2/1/A, vol. 2, 239-42 Yes - No governor present in Newfoundland No GN 2/1/A, vol. 2, 441-52 Yes GN2/1/A, vol. 3,18-21 Yes Unknown Unknown CO 194/15, 70-3 Yes GN 2/1/A, vol. 3,155-9 No No No Unknown Unknown No No No CO 194/30, 88-90 Yes CO 194/30,132-36 Yes CO 194/31,18, 23 CO 194/31, 90-1 Partial GN 2/1/A, vol. 5, 96 CO 194/32,17-31 Yes CO 194/32,106-16 Yes G N 2 / 1 / A , vol. 6,174-94 Yes CO 194/33,11-30 and 72-9

292 Notes on Primary Sources Assize Year 1777 1778 1779 1780 1781 1782 1783 1784

Cases Heard Yes No Yes Yes Yes Partial Unknown Partial

1785 1786 1787 1788 1789 1790 1791

Partial Yes No No Yes Yes Partial

Archival Location and Notes CO 194/33,140-52 GN 2/1/A, vol. 7,19^7 GN 2/1/A, vol. 8,117-46 GN 2/1 / A, vol. 9,322-32 GN 2 /1 / A, vol. 9, 365-6 GN 2/1/A, vol. 10,112-21 CO 194/36, 70-4 GN 2/1/A, vol. 10,185-9 CO 194/36,215-43

CO 194/38,122-78 CO 194/38,202-12 CO 194/38,274-7 GN 2/1/A, vol. 12,97-9

SAMPLE OF THE N E W F O U N D L A N D DISTRICT COURT RECORDS

The records of the courts convened in the districts outside St John's are a hybrid of the proceedings of justices of the peace and naval surrogates. Fishing admirals also occasionally sat alongside the justices and the surrogates during the autumn quarter sessions, which were often referred to as a surrogate court of sessions. These archival records have been cataloged separately as minutes of the court of sessions and surrogate court. Prior to 1792, however, these proceedings included a wide range of data on both justices of the peace and naval officers serving as surrogates: governors and magistrates did not differentiate between the jurisdictions of naval and civil magistrates. The distinction between courts of session and surrogate courts has therefore been replaced by the term 'district courts/ which denotes all of the sessions held in the outport districts by the authority of naval and/or civil magistrates. In practice, the minute books functioned as the local repository for all legal records, from minutes of quarter sessions to private indentures. Record-keeping varied markedly according to the initiative of the senior justice of the peace and the visiting naval officer. Even within a single series of records, the quality of the minutes depended largely on the presiding magistrate: while some noted every warrant

Notes on Primary Sources 293

issued out of sessions, others kept records of only trial proceedings. Pagination in original documents, where it appears, is unreliable: court proceedings can be accurately cited only by date. Regional variation among the different communities was less a product of actual legal practices than of uneven record-keeping. The regular presence of the naval surrogates each autumn ensured a basic level of uniformity in judicial procedures. These minute books comprise only a portion of the overall business of the district courts. The bulk of correspondence between the governor and the justices of the peace, as well as virtually all of the orders sent by the governor to the outports, are preserved in the Colonial Office Papers and the Colonial Secretary's Letterbook. Research into these sources demonstrates that the minute books alone cannot be relied upon as a comprehensive primary source for the island's legal history. There is some overlap between the district proceedings and the colonial correspondence - for example, visiting naval surrogates often entered the governor's annual proclamations into the minute books but many important developments appear only in the records preserved at St John's. The minute books seem to have been kept in the local communities where the district courts were convened; appeals and other memoranda were often copied locally and transmitted to the governor via the naval surrogates. All of the records for the districts listed below have been sampled. Except for the district of Trinity, research was confined largely to criminal proceedings, criminal trials, and the range of noncapital punishments meted out for various common law offences. Since magistrates were not legally bound to keep written accounts of all their actions taken out of sessions, the total number of punishments actually carried out cannot be determined. The minute books do not include references to all of the public whippings inflicted from 1751 to 1796, and evidence suggests that the proportion of unrecorded punishments was substantial. Nonetheless, the proceedings provide insights into the variety of court actions and the range of punishments employed by the local magistracy. For example, the sample confirms that public whippings were used to punish indentured servants for insolence towards their masters and simple breaches of the peace. In the case of Trinity, a complete transcript was compiled of all the judicial business, including every writ and order relating to civil causes. The Trinity minute books are by far the most detailed and complete of all the district records. They give a relatively accurate indica-

294 Notes on Primary Sources

tion of the makeup of the judicial business conducted in the outports. Over 300 separate entries, ranging from formal writs to daily memoranda, were made from 1760 to 1790: a total of 155 criminal and civil actions were heard by the magistracy. These cases break down into four basic categories: civil suits between and among merchants and planters (20 per cent); causes between masters and servants (44 per cent); criminal trials (12 per cent); and other types of actions, such as disputes over wills, or those which could not be completely identified (24 per cent). This breakdown is similar to the patterns identified by Gordon Handcock in his pioneering study of Trinity Bay.* The bound minute books are located at the Provincial Archives of Newfoundland and Labrador [PANL] and the Provincial Resource Library [PRL], Newfoundland Collection. In addition, miscellaneous minutes kept by surrogates and justices of the peace were entered into the Colonial Secretary's Letterbook [PANL, GN 2/1/A], some of which provide the only extant references to early court proceedings. SAMPLE OF MINUTES

District

Years

Archival Reference

Trinity

1753-94 1757 1759 1762 1751 1753-4 1757 1759 1773-96 1786-91 1789-90 1754 1757-86 1757-62 1757-58

PANL, GN 5 / 4 / B /1, boxes 1 and 2 PANL, GN 2/1/A, vol. 2, 375 PANL, GN 2/1/A, vol. 3, 6 PANL, GN 2/1/A, vol. 3,167-9 PANL, GN 2/1 / A, vol. 1, 243 PANL, GN 2/1/A, vol. 2,117-25 PANL, GN 2/1/A, vol. 2, 373 PANL, GN 2/1/A, vol. 3, 22 PRL, 340.9/ N45 VT, Rare Books PANL, GN5/4/C/1 PANL,GN5/1/B/1 PANL, GN 2/1 / A, vol. 2, 78-80 PANL,GN5/4/C/l PRL, 340.9/ N45 VT, Rare Books PANL, GN 2/1 / A, vol. 2, 323-^0

Ferryland

Placentia

W. Gordon Handcock, Soe longe as there comes noe women: Origins of English Settlement in Nezvfoundland (St John's: Breakwater Books, 1989), 134-7.

Notes on Primary Sources 295 District

Years

Archival Reference

Harbour Grace

1754 1765 1788-91 1787-92 1751 1758 1789-91 1751 1753

PANL, GN 2/1/A, vol. 2,159 PANL, GN 2/1/A, vol. 3, 312-13 PANL, G N 5 / 4 / B / 1 PANL, GN 5 /1 / B /1 PANL, GN 2/1/A, vol. 1, 227-36 PANL, GN 2/1/A, vol. 2, 462-3 PRL, 340.9/N45 VT, Rare Books PANL, GN 2/1/A, vol. 1, 265 PANL, GN 2/1/A, vol. 2, 69

Trepassey-St Mary's

Bay Bulls

RECORDS OF THE FISHING A D M I R A L S

There is no archival cataloguing for the proceedings of the fishing admirals' courts. References to the fishing admirals are dispersed throughout the Colonial Secretary's Letterbook [GN 2/1 /A], housed at the Provincial Archives of Newfoundland and Labrador [PANL]. These materials are not part of any minute book or autonomous series of records; rather, they have survived for study simply because they were copied into the Letterbook. Evidence indicates that the fishing admirals rarely kept any written records, and it is highly doubtful that any separate minute book or journal was ever created. Sampling was not employed: the following records comprise all of the known surviving minutes of the fishing admirals' court copied into the Colonial Secretary's Letterbook from the beginning of this series of records in 1749 to the end of the eighteenth century. References to the admirals also appear in the bound minute books for a number of the district courts. These records are housed at PANL and in the Rare Book Cabinet of the Newfoundland Collection housed at the Provincial Resource Library [PRL]. Research has revealed evidence relating to the admirals in Trinity [PANL, GN 5/4/B/l]; Ferryland [PANL, G N / 5 / 4 / C / 1 & PRL 340.9/N45 VT]; Placentia [PANL, GN 5/4/C/l]; and Trepassey [PRL 340.9/N45 VT]. The entries listed below constitute all of the known references to the admirals in the outport districts under the pre-1792 legal system: these data are by no means complete and probably omit some references which I may have inadvertently missed during my research. The material listed below consists of a range of judicial actions which have been broken down into eight categories:

296 Notes on Primary Sources Description

Category

Proceedings of a fishing admirals' court Proceedings of a session of a district court at which a fishing admiral heard a case alongside a justice of the peace Surrogate's Proceedings: Proceedings of a session of a surrogate court at which a fishing admiral assisted a naval officer presiding over a case Order: Order and warrants sent to the fishing admirals by the governor or one of his surrogates Appeal made against a judgement made by a fishAppeal: ing admiral Decree: Decree made by a governor, usually in response to an appeal, which bore directly on a fishing admiral's judgment Testimony: Testimony of a fishing admiral before a district court Report of a fishing admiral upon request from a Report: naval or civil magistrate Admirals' Proceedings: District Proceedings:

R E F E R E N C E S IN THE COLONIAL SECRETARY S LETTERBOOK

Archival Source

Volume

Page

PANL,GN2/1/A

1

76 157 90-3 93 94 349-50 116 116 121 234 289 289 4 18 96 97-8 98

1 1 1 1 1 2 2 2 3 3 3 5 5 6 6 6

Year 1749 1750 1749 1750 1750 1752 1754 1754 1754 1764 1765 1765 1771 1771 1775 1775 1775

Type of Judicial Action

Order Decree & Order Decree (copy of 1701 doc.) Appeal & Order Appeal & Decree Admirals' Proceedings Admirals' Proceedings Decree Admirals' Proceedings Order Order Order Order Order Order Appeal Decree

Notes on Primary Sources 297 Archival Source PANL,GN2/1/A

Volume 6 10

10 10 10 10 10 10 10 10 11 12

Page 123 13 14-18 36 65-6 67-9 69-74 122-8 150 219-23 106-11 139

Year 1776 1784 1784 1782 1784 1784 1784 1784 1785 1785 1786 1792

Type of Judicial Action Order Order Admirals' Proceedings Order Decree Order Admirals' Proceedings Decree Order Decree Admirals' Proceedings Order

R E F E R E N C E S IN THE DISTRICT MINUTE BOOKS

Archival Source PANL, G N 5 / 4 / B / 1 , box 1

PANL, G N 5 / 4 / C / 1

PANL, G N 5 / 4 / C / 1 PRL 340.9 /N45VT PRL 340.9 /N45VT

Date District 3 Oct. 1755 Trinity 2 Oct. 1755 Trinity 2 Oct. 1755 Trinity 2 Oct. 1755 Trinity 16 Aug. 1756 Trinity 3 Oct. 1757 Trinity 29 Sept. 1758 Trinity 14 Sept. 1759 Trinity 14 Sept. 1759 Trinity Placentia 8 Sept. 1769 Placentia 26 Sept. 1770 Placentia 3 Jan. 1784 Ferryland 10 Sept. 1787 Ferryland 21 Oct. 1788 Ferryland 25 Aug. 1784 Ferryland 2 Aug. 1785 Trepassey 7 July 1789

Type of Judicial Action District Proceedings District Proceedings District Proceedings District Proceedings Order Order Order Surrogate's Proceedings Surrogate's Proceedings Testimony Order Report Admirals' Proceedings Report Testimony Testimony Order

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Notes

Preface 1 For examples of different uses of the term 'custom of the country/ see James H. Merrell, '"The Customes of Our Countrey": Indians and Colonists in Early America/ in Bernard Bailyn and Philip Morgan, eds., Strangers within the Realm: Cultural Margins of the First British Empire (Chapel Hill: Institute of Early American History and Culture, 1991), 117-56; Gerald Friesen, The Canadian Prairies: A History (Toronto: University of Toronto Press, 1987), 66-72; Sylvia Van Kirk, 'Many Tender Ties': Women in Fur-Trade Society, 1670-2870 (Winnipeg: Watson and Dwyer, 1980), chap. 2. 2 Richard Henry Dana, Jr, Two Years Before the Mast: A Personal Narrative of Life at Sea, ed. Thomas Philbrick (1840; reprinted, London: Penguin, 1981), 160. 3 For an insightful discussion of historical imagination and intuitive knowledge, see Louis Menand, 'The Historical Romance: Edmund Wilson's adventure with Communism/ The New Yorker (24 March 2003): 78-82. 4 On the French Shore and Anglo-French relations in Newfoundland see, inter alia, Frederic F. Thompson, The French Shore Problem in Newfoundland: An Imperial Study (Toronto: University of Toronto Press, 1961); Olaf Uwe Janzen, The French Raid Upon the Newfoundland Fishery in 1762 - A Study in the Nature and Limits of Eighteenth-Century Sea Power/ in William B. Cogar, ed., Naval History: The Seventh Symposium of the U.S. Naval Academy (Wilmington, DL: Scholarly Resources, 1988), 35-54; James K. Hiller, 'Utrecht Revisited: The Origins of French Fishing Rights in New-

300 Notes to pages xiii-3 foundland Waters/ Newfoundland Studies 7 (Spring 1991): 23-39; Michael Wilkshire and Frances Wilkshire, 'Alliances and Conflicts on m.e French Shore: Captain Hamon's Journal, Written in Greenspond in 1770/ Newfoundland Studies 8 (Fall 1992): 147-54; J-F. Briere, 'The French Codfishing Industry in North America and the Crisis of the Pre-Revolutionary Years 1783-1792,' in Patricia Galloway and Philip Boucher, eds., Proceedings of the Fifteenth Meeting of the French Colonial Historical Society Martinique and Guadeloupe, May 1989 (Lanham, MD: University Press of America, 1992); Olaf Uwe Janzen, '"Une petite Republique" in South western Newfoundland: The Limits of Imperial Authority in a Remote Maritime Environment,' in Lewis R. Fischer and Walter Minchinton, eds., Research in Maritime History, Vol. 3: People of the Sea (St John's: International Maritime Economic History Association, 1992), 1-33; and James K. Hiller, 'The Newfoundland Fisheries Issue in Anglo- French Treaties, 1713-1904,' Journal of Imperial and Commonwealth History 24,1 (Jan. 1996): 1-23. Chapter 1: Introduction 1 Bernard Bailyn, The New England Merchants in the Seventeenth Century (Cambridge: Harvard University Press, 1955); Bernard Bailyn, Voyagers to the West: A Passage in the Peopling of America on the Eve of the Revolution (New York: Random House, 1986); Ian K. Steele, The English Atlantic, 1675-1740: An Exploration of Communication and Community (Oxford: Oxford University Press, 1986); David Cressy, Coming Over: Migration and Communication between Europe and New England in the Seventeenth Century (Cambridge: Cambridge University Press, 1987). 2 David Hancock, Citizens of the World: London Merchants and the Integration of the British Atlantic Community, 1735-1785 (Cambridge: Cambridge University Press, 1995); Alison Olson, Making the Empire Work: London and American Interest Groups, 1690-1790 (Cambridge: Harvard University Press, 1992); Eliga Gould, The Persistence of Empire: British Political Culture in the Age of the American Revolution (Chapel Hill: University of North Carolina Press, 2000). 3 See, inter alia, Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge: Cambridge University Press, 1987); Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Penguin, 1991); Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000). See also W. Jeffrey Bolster, Blackjacks: African

Notes to pages 3-4 301 American Seamen in the Age of Sail (Cambridge: Harvard University Press, 1998). 4 Paul Langford, A Polite and Commercial People: England, 1727-1783 (Oxford: Oxford University Press, 1989); Linda Colley Britons: Forging the Nation, 1707-1837 (New Haven: Yale University Press, 1992); Kathleen Wilson, The Sense of the People: Politics, Culture and Imperialism in England, 1715-1785 (Cambridge: Cambridge University Press, 1995); John Brewer, The Pleasures of the Imagination: English Culture in the Eighteenth Century (London: Harper Collins, 1997); Nicholas Rogers, Crowds, Culture, and Politics in Georgian Britain (Oxford: Clarendon Press, 1998). 5 Ned Landsman, Scotland and Its First American Colony, 1683-1765 (Princeton: Princeton University Press, 1985); Nicholas Canny and Anthony Pagden, eds., Colonial Identity in the Atlantic World, 1500-1800 (Princeton: Princeton University Press, 1987); Ned Landsman, 'The Provinces and the Empire: Scotland, the American Colonies and the Development of British Provincial Identity/ in Lawrence Stone, ed., An Imperial State at War: Britain from 1689 to 1815 (New York: Routledge, 1994); H.V. Bowen, Elites, Enterprise and the Making of the British Oversees Empire, 1688-1775 (London: Macmillan Press, 1996). 6 Jack P. Greene, Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (Chapel Hill: Institute of Early American History and Culture, 1988); Gordon S. Wood, The Radicalism of the American Revolution (New York: Random House, 1991); Jack P. Greene, 'The American Revolution,' American Historical Review 105,1 (Feb. 2000): 93-102. 7 P.J. Marshall, ed., The Oxford History of the British Empire, Volume II: The Eighteenth Century (Oxford: Oxford University Press, 1998). See also Alan Karras, The Atlantic World as a Unit of Study/ in Alan Karras and J.R. McNeill, eds., Atlantic American Studies: From Columbus through Abolition, 1492-1888 (New York: Routledge, 1992), 1-15. 8 Thomas Benjamin, Timothy Hall, and David Rutherford, eds., The Atlantic World in the Age of Empire (New York: Houghton Mifflin, 2001). 9 John McCusker and Russell Menard, The Economy of British America, 16071789, 2nd ed. (Chapel Hill: University of North Carolina Press, 1991), 11213. 10 John P. Greene, Between Damnation and Starvation: Priests and Merchants in Newfoundland Politics, 1745-1855 (Montreal: McGill-Queen's University Press, 1999), 5. 11 D.W. Prowse, A History of Newfoundland from the English, Colonial, and Foreign Records (1895; reprinted, Belleville, ON: Mika Studio, 1972). This work

302 Notes to pages 4-5 has gone through several editions, the most recent of which was published in the spring of 2002. 12 On the study of the state in Canadian history, see Allan Greer and Ian Radforth, 'Introduction/ in Greer and Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press, 1992), 1-16; Rainer Baehre, 'The State in Canadian History,' Acadiensis 24 (Autumn 1994): 119-133; Louis Knafla and Susan Binnie, 'Beyond the State: Law and Legal Pluralism in the Making of Modern Societies/ in Knafla and Binnie, eds., Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press, 1995), 3-33. 13 Allan Greer, 'Canadian History: Ancient and Modern/ Canadian Historical Review 77, 6 pec. 1996): 575-90. 14 For a critique of the retarded development thesis, see Keith Matthews, 'Historical Fence Building: A Critique of the Historiography of Newfoundland/ Newfoundland Quarterly 74,1 (Spring, 1978): 21-30. 15 John Crowley, 'Empire versus Truck: The Official Interpretation of Debt and Labour in the Eighteenth-Century Newfoundland Fishery/ Canadian Historical Review 70, 3 (Sept. 1989), 311-36. 16 Peter E. Pope, Fish into Wine: The Newfoundland Plantation in the Seventeenth Century (Chapel Hill: Institute of Early American History and Culture, in press), esp. chaps. 7 and 9; C. Grant Head, Eighteenth Century Newfoundland: A Geographer's Perspective (Toronto: McClelland and Stewart, 1976); Sean Cadigan, Hope and Deception in Conception Bay: Merchant-Settler Relations in Newfoundland, 1785-1855 (Toronto: University of Toronto Press, 1995); W. Gordon Handcock, Soe longe as there comes noe women: Origins of English Settlement in Newfoundland (St John's: Breakwater Books, 1989). Patrick O'Flaherty's well-researched monograph offers a compact narrative of the major events and trends in the eighteenth century, but it does not provide an indepth account of naval government. See Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), chaps. 4-6. 17 On this point, see Peter E. Pope, 'Comparisons: Atlantic Canada/ in Daniel Vickers, ed., A Companion to Colonial America (Oxford: Blackwell, 2003), 489-507. 18 On Newfoundland historiography, see F.W. Rowe, 'Myths of Newfoundland/ Newfoundland Quarterly 74, 4 (Winter 1979): 3-16; Peter Neary, 'The Writing of Newfoundland History/ in J.K. Hiller and P. Neary, eds., Newfoundland in the Nineteenth and Twentieth Centuries: Essays in Interpretation (Toronto: University of Toronto Press, 1980), 3-13; George M. Story, 'D.W. Prowse and Nineteenth-century Colonial Historiography/ in S. Ryan, ed., Newfoundland History, 1986 (St John's: Newfoundland Historical Society,

Notes to page 6 303 1986), 34-^5; Jerry Bannister, '"A Species of Vassalage": The Issue of Class in the Writing of Newfoundland History/ Acadiensis 24,1 (Autumn 1994): 134-44; James K. Hiller, 'Is Atlantic Canadian History Possible?/ Acadiensis 30,1 (Autumn 2000): 16-22. 19 Greene, Pursuits of Happiness, chaps. 7-8. 20 On the historiography of borderland societies, see Bernard Bailyn and Philip Morgan, 'Introduction/ in Bernard Bailyn and Philip Morgan, eds., Strangers within the Realm: Cultural Margins of the First British Empire (Chapel Hill: University of North Carolina Press, 1991), 2-31. 21 Chistopher L. Tomlins, 'The Many Legalities of Colonization: A Manifesto of Destiny for Early American Legal History/ in Christopher L. Tomlins and Bruce H. Mann, eds., The Many Legalities of Early America (Chapel Hill: University of North Carolina Press, 2001), 20. 22 John Brewer, The Sinews of Power: War, Money, and the English State, 16881783 (London: Unwin Hyman, 1989); Michael Braddick, State Formation in Early Modern England, c. 1550-1700 (Cambridge: Cambridge University Press, 2000); John Brewer, The Eighteenth-century British State: Contexts and Issues/ in Lawrence Stone, ed., An Imperial State at War: Britain from 1689 to 1815 (New York: Routledge, 1994), esp. 54; Michael Braddick, 'State Formation and Social Change in Early Modern England: A Problem Stated and Approaches Suggested/ Social History 16,1 (Jan. 1991): 117; John Brewer and Eckhart Hellmuth, 'Introduction: Rethinking Leviathan/ in Brewer and Hellmuth, eds., Rethinking Leviathan: The EighteenthCentury State in Britain and Germany (Oxford: Oxford University Press, 1999), 1-21. 23 See Lee Davison, Tim Hitchcock, Tim Keirn, and Robert Shoemaker, The Reactive State: English Governance and Society, 1689-1750,' in Lee Davison, Tim Hitchcock, Tim Keirn, and Robert Shoemaker, eds., Stilling the Grumbling Hive: The Response to Social and Economic Problems in England, 1689-1750 (New York: St Martin's Press, 1992), xi-xli. 24 For reviews of the historiography, see Jim Phillips, The History of Canadian Criminal Justice, 1750-1920,' in Jane Gladstone, Richard Ericson, and Clifford Shearing, eds., Criminology: A Reader's Guide (Toronto: Centre of Criminology, 1991); Greg Marquis, 'Law, Society and History: Whose Frontier?/ Acadiensis 21 (Spring 1992): 162-74; Jim Phillips, 'Crime and Punishment in the Dominion of the North: Canada from New France to the Present/ in Clive Emlsey and Louis Knafla, eds., Crime History and Histories of Crime: Studies in the Historiography of Crime and Criminal Justice (Westport, CT: Greenwood Press, 1996), 163-99; Jim Phillips, 'Recent Publications in Canadian Legal History/ Canadian Historical Review 78 (June 1997): 236-57;

304 Notes to pages 6-8

25

26 27

28

29

30

Margaret McCallum, 'Canadian Legal History in the Late 1990s: A Field in Search of Fences?/ Acadiensis 27 (Spring 1998): 151-66. Jim Phillips, "'Securing Obedience to Necessary Laws": The Criminal Law in Eighteenth-Century Nova Scotia/ Nova Scotia Historical Review 12 (1992): 87-124; Jim Phillips, 'The Operation of the Royal Pardon in Nova Scotia, 1749-1815,' University of Toronto Law Journal 42 (1992): 401^9; Jim Phillips, 'Halifax Juries in the Eighteenth Century/ in Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the Old World and the New: Essays in Honour ofJ.M. Beattie (Toronto: Centre of Criminology, 1998), 135-82. David Hackett Fischer, Historians' Fallacies: Toward a Logic of Historical Thought (New York: Harper, 1970), 154. I have chosen to use the term 'legal culture' instead of alternatives such legal ideology because I wish to emphasize that the administration of justice was, first, imbedded within broader patterns of social conflict and, second, filtered though the cultural rituals of court proceedings. On the debates over the concept of legal culture, see, inter alia, Roger Cotterrell, 'The Concept of Legal Culture/ and Lawrence Friedman, 'The Concept of Legal Culture: A Reply/ both in David Nelken, ed., Comparing Legal Cultures (Aldershot, UK: Dartmouth, 1997), 13-32 and 33-41; Jerry Leonard, '(Post) Modern Legal Studies as (Critical) Cultural Studies/ in Jerry Leonard, ed., Legal Studies as Cultural Studies: a reader in (post) modern critical theory (New York: State University of New York Press, 1995), 1-20; and Peter Sack, 'Introduction/ in Peter Sack, ed., Law and Anthropology (Aldershot, UK: Dartmouth, 1992), xiii-xxxi. On the other hand, to adopt an overly inclusive model entails the hazard of watering down analysis into vague and ultimately empty generalizations. On this point, see David Sugarman, 'Writing "Law and Society" Histories/ Modern Law Review 55 (Mar. 1992): 292-307; R. Ross, 'The Legal Past of Early New England: Notes for the Study of Law, Legal Culture, and Intellectual History/ William and Mary Quarterly 3rd ser., 50 (1993): 28-41. Elizabeth Fox-Genovese and Eugene Genovese, The Fruits of Merchant Capital (Oxford: Oxford University Press, 1983), 212. On this point as it relates to Newfoundland historiography, see Stuart Pierson, 'Review of Ommer, ed., Merchant Credit,' Newfoundland Studies 8,1 (1992): 90-108 at 102-03. This summary necessarily simplifies the complex socio-economic development. Unless otherwise noted, the material in this and the following paragraphs draws on the major scholarly studies: Head, Eighteenth Century Newfoundland, 82-100; Handcock, Soe longe as there comes noe women, 91-120; J.J. Mannion, ed., The Peopling of Newfoundland: Essays in Historical

Notes to pages 9-10 305

31

32

33

34

35

Geography (St John's: Institute of Social and Economic Research, 1977), 117; Raymond Lahey, 'Catholicism and Colonial Policy in Newfoundland, 1779-1845,' in Terrence Murphy and Gerald Stortz, eds., Creed and Culture: The Place of English-Speaking Catholics in Canadian Society, 1750-2930 (Montreal:McGill-Queen's University Press, 1993), 49-53; John Mannion, 'The Maritime Trade of Waterford in the Eighteenth Century/ in W. Smyth and Kevin Whelan, eds., Common Ground: Essays on the Historical Geography of Ireland (Cork: Cork University Press, 1988), 208-33; Keith Matthews, Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books 1988), chaps. 14-15; Shannon Ryan, 'Fishery to Colony: A Newfoundland Watershed, 1793-1815,' in P.A. Buckner and D. Frank, eds., The Acadiensis Reader, Volume One: Atlantic Canada Before Confederation, 2nd ed. (Fredericton: Acadiensis Press, 1990), 138-56; Cadigan, Hope and Deception in Conception Bay, chaps. 2-4; O'Flaherty, Old Newfoundland, chaps. 4—6. On the use of the term 'servant' in local nomenclature, see G.M. Story, W.J. Kirwin, and J.D.A. Widdowson, eds., Dictionary of Newfoundland English, 2nd ed. (Toronto: University of Toronto Press, 1990), 461. A standard shipping paper reads: 'Then I Thomas Leaman agreed and shipped myself with Mr. William Collens for this Winter, and the next Summer ensuing, and I am to do the best of my endeavour for the good of the voyage; and in consideration of my due performance, I am to have for my wages the sum of £26 sterling; and, after allowing my Country charges, to have the balance of my account in good bills of exchange. To be clear the 20th of September 1788.' This document is printed in Sheila Lambert, ed., House of Commons Sessional Papers, Volume 90: Newfoundland, 1792-93 (Wilmington, DE: Scholarly Resources, 1975), 427. On the standard definition of servitude in this period, see Robert Steinfeld, The Invention of Free Labor: The Employment Relation in England and American Law and Culture, 1350-1870 (Chapel Hill: University of North Carolina Press, 1991), chap. 2. For an argument that these fears were unfounded and that Newfoundland had little sectarian conflict, see John Mannion,'"... Notoriously disaffected to the Government..." British allegation of Irish disloyalty in eighteenthcentury Newfoundland/ Newfoundland Studies 16,1 (2000): 1-29; John Mannion, 'Transatlantic Disaffection: Wexford and Newfoundland, 1798-1800,' journal of the Wexford Historical Society 17 (1998-9): 30-60 at 48. Provincial Archives of Newfoundland and Labrador [PANL], Colonial Office Papers, series 194 [CO 194], vol. 12,186, report of Governor Drake, 24 Dec. 1750. References to CO 194 are divided between the copies on

306 Notes to pages 11-15

36 37 38 39 40

41

42 43

44

45

46

47

48

microfilm, which I examined at PANL, and the original bound volumes, which I studied at the Public Record Office in London. PANL, Colonial Secretary's Letterbook [GN 2/1/A], vol. 2, 202, 216, 25162, 264, and 277. On the term 'dieter,' see Dictionary of Newfoundland English, 140. PANL, GN 2/1/A, vol. 3,272. PANL, GN 2/1/A, vol. 4, 285, vol. 6,101-2. The map was published in Griffith Williams, An Account of the Island of Newfoundland, with the Nature of Its Trade, and Method of carrying on the Fishery, with Reasons for the great Decrease of that most Valuable Branch of Trade (London: T. Cole, 1765), 2. Ralph Pastore, 'Fishermen, Furriers, and Beothuks: The Economy of Extinction/ Man in the Northeast 33 (Spring 1987): 47-62; James Tuck and Ralph Pastore, 'A Nice Place to Visit But... Prehistoric Human Extinctions on the Island of Newfoundland,' Canadian Journal of Archaeology 9,1 (1985): 69-79; Ralph Pastore, Shanawdithit's People: The Archaeology of the Beothuks (St John's: Breakwater Books, 1992), 1-75. PANL, GN 2/1/A, vol. 2, 429. PANL, GN 2/1/A, vol. 3, 282 (1765). The history of official efforts to establish relations with the Beothuk is described in detail in Ingeborg Marshall, A History and Ethnography of the Beothuk (Montreal: McGill-Queen's University Press, 1996), chaps. 6-10. Marshall, History and Ethnography of the Beothuk, chaps. 10-14; Ralph Pastore, 'The Collapse of the Beothuk World,' in Buckner and Frank, eds., The Acadiensis Reader, Volume One, 11-30; Jeff Webb, 'Imagining the Beothuks: the Abduction of Demasduit in History and Literature' (unpublished paper, 2002). Giles Jacob, A New Law-Dictionary: Containing the Interpretation and Definition of Words and Terms used in the Law, ed. J. Morgan. (10th ed. (London: W. Strahan and W. Woodfall, 1783). I thank Professor Douglas Hay for this reference. Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), f. 148 [testimony of John Reeves], in Lambert, ed., House of Commons Sessional Papers, 386. McGrath, et al. v. Witycombe, 15 July 1793, Ferryland District (Provincial Resource Library, Newfoundland Collection [hereafter PRL], 340.9/N45 VT, Rare Books). Emphasis added. On the relationship between custom and common law, see A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press, 1987), esp. 362-8; R.J. Walker and M.G. Walker, The English Legal

Notes to pages 15-188

49

50

51

52 53

54

55

56

307

System, 3rd ed. (London: Butterworths, 1972), chap. 3; Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford: Clarendon Press, 1964), chap. 2. E.P. Thompson, Customs in Common: Studies in Traditional Popular Culture (New York: New Press, 1991); Bob Bushway, By Rite: Custom, Ceremony and Community in England 1700-1880 (London: Junction Books, 1982); Robert Malcolmson, Life and Labour in England, 1700-1780 (London: Hutchinson, 1981), chap. 4. A recent collection of essays treats unwritten law and folk law as largely one and the same thing. Alison Dundes Renteln and Alan Dundes employ a series of dichotomies — e.g., oral versus written, flexible versus fixed - to construct an inclusive definition of folk law. See Alison Dundes Renteln and Alan Dundes, 'What is Folk Law?,' in Dundes Renteln and Dundes, eds., Folk Law: Essays in the Theory and Practice of Lex Non Scripta (Madison: University of Wisconsin Press, 1995), esp. 2-4. See Eric Hobsbawm, 'Introduction: Inventing Traditions,' in E. Hobsbawm and R. Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, 1983), 1-14. Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), f. 22, in Lambert, ed., House of Commons Sessional Papers, 86. Greene, Pursuits of Happiness, esp. 199-200; Jack P. Greene, 'The American Revolution/ American Historical Review 105, 1 (Feb. 2000): 93-102. See also Doron Ben-Atar, The American Revolution/ in Robin Winks, ed., The Oxford History of the British Empire, Volume V: Historiography (Oxford: Oxford University Press, 1999), 94-112. On the development of traditional historiography, see Olaf Uwe Janzen, 'Newfoundland and the International Fishery/ in M. Brook Taylor, ed., Canadian History: A Reader's Guide, Volume 1: Beginnings to Confederation (Toronto: University of Toronto Press, 1994), 280-324. John Reeves, History of the Government of the Island of Newfoundland (1793; reprinted, New York: Johnson Reprints Corporation, 1967), 1. For examples of nineteenth-century works influenced by Reeves, see Lewis Amadeus Anspach, A History of the Island of Newfoundland (London: T.& J. Allman, 1819); William Carson, Reasons for the Colonizing the Island of Newfoundland (Greenock: William Scott, 1813); Patrick Morris, Remarks on the State of Society, Religion, Morals, and Education at Newfoundland (London: A. Hancock, 1827). Patrick O'Flaherty, The Rock Observed: Studies in the Literature of Newfoundland (Toronto: University of Toronto Press, 1979), chap. 4. For an attempt to rehabilitate Reeves's reputation as a historian, see Mark Warren Bailey, 'John Reeves, Esq. Newfoundland's First Chief Justice: English Law and

308 Notes to pages 18-20

57 58 59 60

61

62

63 64 65 66

67

Politics in the Eighteenth Century/ Newfoundland Studies 14,1 (Spring 1998): 28-49. Prowse, History of Newfoundland, xxviii. Ibid., xxix. Ibid., 428. A.H. McLintock, The Establishment of Constitutional Government in Newfoundland, 1783-1832: A Study of Retarded Colonisation (London: Longmans, Green, 1941), 191-2 and 230. Despite the similarities in their interpretations, McLintock termed Prowse's History The standard work on Nfld. but a very poor history.' Jeff A. Webb, 'Constructing Community and Consumers: Joseph R. Smallwood's Barrelman Radio Programme/ Journal of the Canadian Historical Association, n.s. 8 (1997): 165-86. For the broader context, see Peter Neary, Newfoundland in the North Atlantic World, 1929^9 (Montreal: McGillQueen's University Press, 1988); James Hiller, 'Newfoundland Confronts Canada, 1867-1949,' in E.R. Forbes and D.A. Muise, eds., The Atlantic Provinces in Confederation (Toronto and Fredericton: University of Toronto Press and Acadiensis Press, 1993), 349-81. Leslie Harris, Newfoundland and Labrador: A Brief History (Toronto: J.M. Dent & Sons, 1968). I was assigned this book in grade five. I can still vividly recall my history teacher ranting against vile merchants, dastardly fishing admirals, and untrustworthy Englishmen. Harris, Newfoundland and Labrador, 67. Ibid., 85. Ibid., 88. Keith Matthews, 'History of the West of England - Newfoundland Fishery' (D.Phil, thesis, Oxford University, 1968); Keith Matthews, Collection and Commentary on the Constitutional Laws of Seventeenth Century Newfoundland (St John's: Maritime History Group, 1975); Keith Matthews, 'The Class of '32: St John's Reformers on the Eve of Representative Government/ Acadiensis 6, 2 (Spring 1977): 80-94; Keith Matthews, 'Historical Fence Building: A Critique of the Historiography of Newfoundland/ Newfoundland Quarterly 74 (April 1978): 21-9; Keith Matthews, Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books, 1988). Patrick O'Flaherty, The Seeds of Reform: Newfoundland, 1800-1818,' Journal of Canadian Studies 23, 3 (Fall 1988): 39-56; Patrick O'Flaherty, 'Government in Newfoundland before 1832: The Context of Reform/ Newfoundland Quarterly 84, 2 (Fall 1988): 26-30; Patrick O'Flaherty, 'King William's Act (1699): Some thoughts 300 years later/ Newfoundland Quarterly 93,2 (Winter 2000): 21-8; O'Flaherty, Old Newfoundland, chaps. 4-6.

Notes to pages 20-6 309 68 R.G. Lounsbury, The British Fishery at Newfoundland, 1634-1763 (1934; reprinted, New York: Archon Books, 1969). 69 Christopher English, 'The Development of the Newfoundland Legal System to 1815,' Acadiensis 20,1 (Autumn 1990): 89-119; Christopher English, 'From Fishing Schooner to Colony: The Legal Development of Newfoundland, 1791-1832,' in Knafla and Binnie, eds., Law, Society, and the State, 7398; Christopher English, 'Newfoundland's Early Laws and Legal Institutions: From Fishing Admirals to the Supreme Court of Judicature in 179192,' Manitoba Law Journal 23 (Jan. 1996): 57-78. 70 Christopher English, 'The Official Mind and Popular Protest in a Revolutionary Era: The Case of Newfoundland, 1789-1819,' in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume One: Law, Politics, and Security Measures, 1608-1837 (Toronto: The Osgoode Society, 1996), 317. 71 Christopher English, 'Collective Violence in Ferryland District, Newfoundland, 1788,' Dalhousie Law Journal 21, 2 (Fall 1998): 475-89. 72 Carson, Reasons for the Colonizing the Island of Newfoundland, 11-13; Morris, Remarks, 10-13. 73 English, 'Newfoundland's Early Laws and Legal Institutions/ 56-7, 78. 74 Cadigan, Hope and Deception, 27-32. 75 O'Flaherty, Old Newfoundland 1999, esp. chaps. 4-6. 76 O'Flaherty, 'King William's Act.' 77 See, inter alia, Gerald S. Graham, Empire of the North Atlantic: The Maritime Struggle for North America, 2nd ed. (Toronto: University of Toronto Press, 1958); Daniel Baugh, British Naval Administration in the Age ofWalpole (Princeton: Princeton University Press, 1965); Daniel Baugh, Naval Administration, 1715-50 (London: Navy Records Society, 1977); and, most importantly, N.A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy (Glasgow: William Collins, 1986); N.A.M. Rodger, 'Sea-Power and Empire, 16881793,' in P.J. Marshall, ed., The Oxford History of the British Empire, Volume 11: The Eighteenth Century (Oxford: Oxford University Press, 1998), 169-83. Chapter 2: The Fishing Admirals System 1 D.W. Prowse, A History of Newfoundland from the English, Colonial and Foreign Records (1895; reprinted, Belleville, ON: Mika Studio, 1972), 226. On Prowse's influence, see George Story, 'D.W. Prowse and Nineteenthcentury Colonial Historiography/ in Shannon Ryan, ed., Newfoundland History 1986: Proceedings of the First Newfoundland Historical Society Conference (St John's: Newfoundland Historical Society, 1986), 34—45; Jerry Bannister, 'Whigs and Nationalists: The Legacy of Judge Prowse's History of Newfoundland,' Acadiensis 32,1 (Autumn 2002): 84-109.

310 Notes to pages 26-7 2 The passage, which Prowse copied practically verbatim, appears at Patrick Morris, Arguments to Prove the Policy and Necessity of Granting to Newfoundland a Constitutional Government (London: Hunt & Clarke, 1828), 17. In an earlier pamphlet, Morris, who quoted approvingly from both Anspach and Reeves, had condemned both the fishing admirals and the naval governors as the evil twins of Newfoundland history: The Administration of the Admirals-Governors was of little benefit to the country. A Comparison with the Fishing Admirals may make a shade or two in their favour; but the historian of Newfoundland must rank them together: the principles upon which they acted were precisely the same - a pure, unqualified, and unmitigated despotism.' See Patrick Morris, Remarks on the State of Society, Religion, Morals, and Education at Newfoundland (London: A. Hancock, 1827), 10. On the island's reform movement and Morris's place within it, see Jerry Bannister, 'The Campaign for Representative Government in Newfoundland,' Journal of the Canadian Historical Association, n.s. 5 (1994): 19^0. 3 Although Anspach had served as a justice of the peace and a surrogate judge from 1802 to 1812, his description of judicial administration drew heavily upon local folklore. Published in 1819, his account is the likely origin of the portrait of the fishing admirals, though Anspach included the justices of the peace in his indictment: 'It was said of the Fishing Admirals, and of the Justices of the Peace in the out-harbours, that their decisions were uniformly characterized by the grossest partiality and injustice ... and as to the resident Justices, a quarter-cask of Lisbon or Madeira, a present of some choice spirits, nay, a barrel of apples, a few bottles of West-Indian pickles ... were the usual grounds of the decisions of those administrators of Justice.' See Lewis Amadeus Anspach, A History of the Island of Newfoundland (London: T. & J. Allman, 1819), 177. 4 John Reeves, History of the Government of the Island of Newfoundland (1793; reprinted, New York: Johnson Reprint Corporation, 1967), 149-54. Unlike Patrick Morris, Reeves was careful to separate the fishing admirals from the naval officers who served as surrogate judges in Newfoundland: whereas the former were portrayed as habitually corrupt and incompetent, the latter were depicted as fair and honourable. 5 Prowse's caricature has most recently appeared in Kevin Major's monograph. See Kevin Major, As Near to Heaven by Sea: A History of Newfoundland and Labrador (London: Penguin, 2001), 150-1. See also W.S. MacNutt, The Atlantic Provinces: The Emergence of Colonial Society, 1712-1857 (Toronto: McClelland and Stewart, 1965), 18. 6 Leslie Harris, Newfoundland and Labrador: A Brief History (Toronto: J.M. Dent & Sons, 1968), esp. 47. Paraphrasing Judge Prowse, Harris claimed that the

Notes to pages 27-9

7

8

9

10

11

311

'Fishing Admirals could usually be bribed with money, food, or a glass of rum. They had the power to punish men as harshly as they pleased.' Keith Matthews, 'Historical Fence Building: A Critique of the Historiography of Newfoundland,' Newfoundland Quarterly 74 (April 1978): 21-9; Keith Matthews, 'A History of the West of England-Newfoundland Fishery' (D. Phil, thesis, Oxford University, 1968); Keith Matthews, Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books, 1988), esp. 90-9. The retarded colonization school of thought reached its zenith with A.H. McLintock, The Establishment of Constitutional Government in Newfoundland, 1783-1832: A Study of Retarded Colonisation (London: Longmans, Green, 1941). For a comprehensive review of the historiography, see Olaf Uwe Janzen, 'Newfoundland and the International Fishery/ in M. Brook Taylor, ed., Canadian History: A Reader's Guide, Volume One: Beginnings to Confederation (Toronto: University of Toronto Press, 1994), 280-324. C. Grant Head, Eighteenth Century Newfoundland: A Geographer's Perspective (Toronto: McClelland and Stewart, 1976), 38 and 146; W. Gordon Handcock, Soe longe as there comes noe women: Origins of English Settlement in Newfoundland (St John's: Breakwater Books, 1989); Sean Cadigan, Hope and Deception in Conception Bay: Merchant-Settler Relations in Newfoundland, 1785-1855 (Toronto: University of Toronto Press, 1995), 28 and 31. Christopher English, 'Newfoundland's Early Laws and Legal Institutions: From Fishing Admirals to the Supreme Court of Judicature in 1791-92,' Manitoba Law Journal 23 Qan. 1996): 57-78; Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), esp. chaps. 4-6. See, for example, MarkDwyer, 'Justice's Fishing Admirals,' Newfoundland Herald 56, 3 (20 Jan. 2001), 46-7. Like other popular writers, Dwyer mixes folklore and history together with the basic assertion of the admiral's importance: 'Fishing Admirals are as much of Newfoundland's rich history as the fish they pursued and the legacy they left.' For a critical analysis of this type of history and its link to cultural tourism, see James Overton, Making a World of Difference: Essays on Tourism, Culture and Development in Newfoundland (St John's: Institute of Social and Economic Research, 1996), esp. 146-7. The summary in this and the following paragraph is drawn from O'Flaherty, Old Newfoundland, chap. 3; Matthews, Lectures on the History of Newfoundland, chap. 10; Gillian Cell, English Enterprise in Newfoundland, 15771660 (Toronto: University of Toronto Press, 1969); Gillian Cell, The Cupid's Cove Settlement: A Case Study of the Problems of Colonization,' in George M. Story, ed., Early European Settlement and Exploitation in Atlantic Canada (St lohn's: Memorial University of Newfoundland, 1982), 97-114; Peter Pope,

312 Notes to pages 30-2

12

13 14 15 16

17 18 19

20

21

'Adventures in the Sack Trade: London Merchants in the Canada and Newfoundland Trades, 1627-1648,' The Northern Mariner/Le Marin du Nord 6,1 (Jan. 1996): 1-19. 10 & 11 Wm. Ill, c. 25. On the Western Charters and the seventeenth-century fishery, see Keith Matthews, Collection and Commentary on the Constitutional Laws of Seventeenth Century Newfoundland (St John's: Maritime History Group, 1975), 169-79; Gillian Cell, English Enterprise; Peter E. Pope, Fish into Wine: The Newfoundland Plantation in the Seventeenth Century (Chapel Hill: Institute of Early American History and Culture, in press), esp. chaps. 7 and 9. 10 & 11 Wm. Ill, c. 25, ss. 1-4,12, and 16 (1699). Ibid., ss. 13-15. See Jerry Bannister, 'The Naval State in Newfoundland, 1749-1791,' Journal of the Canadian Historical Association, n.s. 11 (2000): 17-50. G.S. Graham, 'Newfoundland in British Strategy from Cabot to Napoleon,' in R.A. MacKay, ed., Newfoundland: Economic, Diplomatic, and Strategic Studies (1946; reprinted New York: AMS Press 1979); John G. Reid, '1686-1720: Imperial Intrusions,' in PA. Buckner and J.G. Reid, eds., The Atlantic Region to Confederation: A History (Fredericton and Toronto: University of Toronto Press, 1994), 85-93. Patrick O'Flaherty, 'King William's Act (1699): Some thoughts 300 years later,' Newfoundland Quarterly 93, 2 (Winter 2000), 21-8. Newcastle to Board of Trade, 24 Nov. 1730, Public Record Office, Kew [PRO], Colonial Office Papers, Series 194 [CO 194], vol. 9,1. On the Royal Navy and Newfoundland generally, and the relatively few sailors it recruited from the fishery in particular, see Gerald S. Graham, 'Fisheries and Sea Power,' in G.A. Rawlyk, ed., Historical Essays on the Atlantic Provinces (Toronto: G.A. McClelland and Stewart, 1967), 7-16; David Starkey, 'The West County - Newfoundland Fishery and the Manning of the Royal Navy/ in Robert Higham, ed., Security and Defence in South-West England before 1800 (Exeter: University of Exeter Press, 1987), 93-101. Although A.H. McLintock overstated the case, the potential of British policy to restrict property and settlement rights in Newfoundland has been noted by Keith Matthews and, most recently, Sean Cadigan. See McLintock, Establishment of Constitutional Government, chap. 3; Matthews, Lectures on the History of Newfoundland, chap. 7; Sean Cadigan: Hope and Deception in Conception Bay: Merchant-Settler Relations in Newfoundland, 1785-1855 (Toronto: University of Toronto Press, 1995), chap. 1. Head, Eighteenth Century Newfoundland, 146; Handcock, Soe longe as there comes noe women, 38; Pope, Fish into Wine, chaps. 7 and 9.

Notes to pages 32-4 313 22 John Oldmixon, The British Empire in America (London: J. Nickolson, B. Tooke, 1708), 1:18-19. 23 On this point, see Bannister, 'Campaign for Representative Government/ 30-40. 24 Ian K. Steele, 'The Anointed, the Appointed, and the Elected: Governance of the British Empire, 1689-1784,' and John Shy, The American Colonies in War and Revolution, 1748-1783,' both in P.J. Marshall, ed., The Oxford History of the British Empire, Volume II: The Eighteenth Century (Oxford: Oxford University Press 1998), 105-26, 300-23; C.A. Bayly, Imperial Meridian: The British Empire and the World, 1780-1830 (London: Longman, 1989), esp. 1945, 209, 236. On the debate over the relative strength of colonial government in the eighteenth century, see Stephen Foster, 'British North America in the Seventeenth and Eighteenth Centuries,' in Robin Winks, ed., The Oxford History of the British Empire, Volume V: Historiography (Oxford: Oxford University Press 1999), 73-92. 25 Frederick Madden and David Fieldhouse, 'Imperial Policy and Legislation, 1689-c. 1760,' in Madden and Fieldhouse, eds., The Classical Period of the First British Empire, 1689-1783: The Foundations of a Colonial System of Government (Wesport, Conn: Greenwood Press, 1985), 2-5. 26 O'Flaherty, 'King William's Act,' 21-8. 27 For a judicial interpretation of the fishing admirals' powers under King William's Act, see below, Appendix 3.2. 28 George Larkin, 'Report on the state of the Island,' 20 Aug. 1701, PRO, CO 194/2, 132. The report was received at the Board of Trade in London on 15 October 1701. 29 Ibid. 30 See Prowse, History of Newfoundland, 174. On the use of ducking as a punishment, see John Byrn, Crime and Punishment in the Royal Navy: Discipline on the Leeward Islands Station, 1784-1812 (Aldershot, UK: Scolar Press, 1989), 80. The 1680 case is discussed in detail in Pope, Fish into Wine, chap. 10. 31 Larkin, 'Report on the state of the Island/ 20 Aug. 1701. 32 Ibid. 33 Matthews, 'The West of England - Newfoundland Fishery/ 261. 34 See James D. Alsop, 'The Age of Projectors: British Imperial Strategy in the North Atlantic in the War of the Spanish Succession/ Acadiensis 21 (Autumn 1991): 30-53. 35 Steele, 'Metropolitan Administration of the Colonies', 11. 36 Minutes of a general court held in St John's, 5 Oct. 1704, PRO, CO 194/4, 195. 37 Secretary Hedges to the Council of Trade, 4 July 1705, PRO, CO 194/3, 243.

314 Notes to pages 35-7 38 'A State of the Trade to Newfoundland: Answer of the Commissioners of Trade and Plantations to an Order of the Hon. House of Commons/ undated (c. 1705/6), British Library [BL], Egerton Ms. 921. This manuscript report is reputed to have belonged to Robert Walpole. 39 James Montague to Board of Trade, May 1708, PRO, CO 194/4, 226. 40 Order-in-council, 26 June 1708, PRO, Privy Council Registers [PC] 2/82, 122. 41 Michael Godfrey, 'John Moody,' Dictionary of Canadian Biography [hereafter DCB] (14 vols. to date, Toronto: University of Toronto Press, 1966-), 2: 4867. On the St John's garrison, see James Candow, 'The British Army in Newfoundland, 1697-1824,' Newfoundland Quarterly 79 (Spring 1984): 21-8. 42 See the unedited collection, Tyranny in St. John's, 1705-1706: A Sordid Story from the Colonial Records (St John's: Provincial Archives of Newfoundland and Labrador, 1971), 31-43. 43 Prowse, History of Newfoundland, 270. 44 The petition was printed anonymously as The Case of John Collins, Esq., Governor of Newfoundland, January 21, 1711 (London, 1711 [old style]). 45 PRO, CO 194/4, 358. 46 To exacerbate matters, the army garrison at Placentia mutinied in 1714 and Captain Moody remained a thorn in the navy's side. See Godfrey, 'John Moody.' 47 Acts of the Privy Council of England, Colonial Series (London: His Majesty's Stationery Office, 1910-12), 2: 556. 48 Ibid., 2:558. 49 Ibid., 2: 559. 50 Captain Josias Crowe, 'A Record of several laws and orders made at St. John's for the better discipline and good order of the people ... between 23 August and 23 October 1711,' PRO, CO 194/5, 26-7. Titled 'Captain Crowe's Law,' a slightly different printed version appears in Prowse, History of Newfoundland, 271-2. 51 Crowe, 'A Record of several laws and orders made at St John's/ 26-7. 52 Ibid. 53 Captain Josias Crowe, answer to question 22 in the heads of inquiry, 1711, PRO, CO 194/5,24. The 'heads of inquiry' were included in the articles that comprised the instructions given each summer to the commodore and, after 1729, the governor. 54 D.B. Quinn, 'Josias Crowe,' DCB 2:163-4. Quinn argues that such efforts were isolated and failed to influence subsequent developments, but Crowe's initiatives were part of a broader pattern of nascent naval government that grew after 1729.

Notes to pages 38-42 315 55 Commodore Sir Nicholas Trevanion to the Board of Trade, 29 Oct. 1712, Calendar of State Papers, Colonial Series: America and West Indies [hereafter CSPC] (London: His Majesty's Stationary Office, 1926-69), 27: 77. 56 Ibid., 27: 75. 57 Reeves, History, Part II. 58 On the Holdsworths, see Handcock, Soe longe as there comes no women, 63, 154,251. 59 D.B. Quinn, 'Arthur Holdsworth,' DCB, 2:290-1. The documents relating to Holdsworth's quarrel with Lieutenant William Lilburne are at PRO, CO 194/2,86-9,95. 60 Captain John Graydon, list of 'planter's rooms' in St John's, 25 Aug. 1701, PANL, Colonial Secretary's Letterbook [GN 2/1/A], vol. 1, 90-3. 61 Prowse, History of Newfoundland, 227-8. 62 On the pace of the seasonal fishery in Newfoundland, see Matthews, Lectures on the History oj Newfoundland, chap. 9. 63 The Royal Navy's designation of warship types evolved over the course of the eighteenth century. The two-decker forty- and forty-four-gun ships were neither line-of-battle ships nor true frigates in the proper sense of the term; by the 1770s they were used largely as troopships, transports, and for patrol duty. The fifty- and sixty-gun ships were no longer considered to be line-of-battle ships by the 1780s, though they continued to be used as flagships of small squadrons for stations like Newfoundland. The sixty-gun Panther, which was the Newfoundland flagship in the early 1770s, was the only one of its type to survive into the 1790s. See Brian Lavery, Nelson's Navy: The Ships, Men and Organisation, 1793-1815 (London: Naval Institute Press, 1989), 35-52; Gerald S. Graham, Empire of the North Atlantic: The Maritime Struggle for North America, 2nd ed. (Toronto: University of Toronto Press, 1958), 208, 219, and 227; N.A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy (Glasgow: William Collins, 1986), appendices 1-3; and Dudley Pope, Life in Nelson's Navy (Annapolis: Naval Institute Press, 1987), chaps. 2-4. 64 PRO, CO 194/5, 91-6. 65 Titled, 'Considerations on the Trade to Newfoundland,' the essay was printed anonymously but is consistent with Cummings's work. The only extant copy appears at PRO, CO 194/5,198-200. 66 PRO, CO 194/5, 255. 67 CSPC, vol.28, 75-6. 68 CSPC, vol.28, 310-11. 69 PRO, CO 194/6, 1-2. 70 PRO, CO 194/6, 53. See Keith Matthews, 'William Keen,' DCB, 3: 323-4.

316 Notes to pages 42-5 71 Issued in December 1718, the report was included in the materials considered by the 1793 committee of inquiry, and is reprinted in Sheila Lambert, ed., House of Commons Sessional Papers of the Eighteenth Century: Volume 90, Newfoundland, 1792-93 (Wilmington, DE: Scholarly Resources, 1975), 1-22. 72 This point is nicely summarized in Matthews, Lectures on the History of Newfoundland, chap. 3. 73 The link between the suppression of piracy and the growth of the British state is superbly made in Robert Ritchie, Captain Kidd and the War against the Pirates (Cambridge: Harvard University Press, 1986), esp. 137-54. On piracy in the Atlantic generally, see Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge: Cambridge University Press, 1987), chap. 6; and David Cordingly, Life among the Pirates: The Romance and the Reality (London: Little, Brown, 1995), chap. 11. 74 Ritchie, Captain Kidd and the War against the Pirates, 155. 75 Ibid., esp. 62,155. 76 Jan Glete, Navies and Nations: Warships and State Building in Europe and America, 1500-1860, 2 vols. (Stockholm: Almqvist & Wiksell International, 1993), 241. 77 PRO, CO 194/6, 366-7. See also Clinton V. Black, Pirates of the West Indies (Cambridge: Cambridge University Press, 1989), 65-7. 78 Daniel Defoe, A General History of the Pyrates. Ed. Manuel Schonhorn (1724; reprinted, London: J.M. Dent and Sons, 1972), 345-9. It is now generally believed that this book was written by Captain Charles Johnson. See Cordingly, Life Among the Pirates, 10-11. 79 Olaf Uwe Janzen, 'The Problem of Piracy in the Newfoundland Fishery in the Aftermath of the War of the Spanish Succession/ in Poul Holm and Olaf Uwe Janzen, eds., Northern Seas: Yearbook 1997, Association for the History of the Northern Seas (Fiskeri- og Sofartsmuseets studieserie, nr.10; Esbjerg, Denmark: Fiskeri- og S0fartsmuseet, 1998), 57-75. 80 CSPC, vol. 31, 246. 81 PRO, CO 194/7, 22. 82 PRO, CO 194/7, 21. 83 Board of Trade to Lord Carteret, 1 Apr. 1721, PRO, CO 195/7, 76-8. 84 Matthews and McLintock both agree on this point. See Matthews, Lectures on the History of Newfoundland, chap. 12; McLintock, Establishment of Constitutional Government, chap. 1. 85 An index to the Newfoundland correspondence simply notes: 'Rules agreed upon by several persons combined together; who had withdrawn

Notes to pages 45-50 317

86

87 88

89

90

91 92 93 94 95 96

97 98

99

themselves to an Island in Trinity Harbour.' See PRO, CO 326/45,1 Dec. 1703 (not paginated). PRO, CO 194/7, 247. The passage beginning 'Men being by nature all free, equal and independent...' was copied directly, along with the citation, 'page 256, Book 2nd, Chap 8th, Edition 4th, London: printed by John Churchill, 1713.' The records appear at PRO, CO 194/7, 246-52. This quotation is taken from the printed extract in Jeff Webb, 'Leaving the State of Nature: A Locke-Inspired Political Community in St. John's, Newfoundland, 1723,' Acadiensis 21 (Autumn 1991): 156-65 at 160. Spelling and punctuation have been modernized. Quoted from Webb, 'Locke-Inspired Political Community in St John's,' 161. The use of corporal punishment to discipline servants is examined at length in chapter 7. This point is made also by Jeff Webb. Webb's insightful summary of what he terms a 'Lockean community' is one of the few studies to argue that the absence of formal institutions did not mean that the island's settlers were without law. See Webb, 'Locke-Inspired Political Community in St John's,' 157, 161-2. PRO, CO 194/8, 13. PRO, CO 194/8, 163. PRO, CO 194/8, 141. PRO, CO 194/8, 181-82. PRO, PC 2/90, 488-9. Minutes of the Surrogate Court, Trinity, 24 Aug. 1787, PANL, GN 5 / 4 / B / l . Unless otherwise noted, all of the material in this section (including all of the quotations) is from this source. 10 & 11 Wm. Ill, c. 25, s. 15 (1699). Minutes of the District Court, Trinity, 29 Sept. 1758, PANL, GN 5/4/B/l. Entered into the minutes was a deposition, dated 26 June 1758, from Robert Hutchens, the constable for Trinity. Hutchens stated that the justice of the peace had ordered him to take Captain Lundridge, the local fishing admiral, with him to serve a capias. Hutchens deposed that Lundridge asked to see the warrant, whereupon he 'put it in his pocket and told me that he was now constable and would not let me have it again after the third time asking/ When the local magistrates learned of the incident, they took no known action and it seems to have been quickly forgotten. According to Prowse's view of the admirals, 'Time would fail to recount all of the enormities and barbarities of these ignorant vulgar tyrants. They displaced the rightful owners of room seizing them either for themselves or

318 Notes to pages 52-4

100 101 102

103 104 105 106 107 108 109

110

111 112 113 114

their friends; they fined, triangled, and whipped at their pleasure every unfortunate wretch who earned their displeasure, and against whom some trumped-up charge could be made out.' See Prowse, History of Newfoundland, 226. Minutes of the Trinity District Court, 2 Oct. 1755, PANL, GN 5/4/B/l. Orders of Governor Byron, undated [1771], PANL, GN 2/1/A, vol. 5,4,18. 10 & 11 Wm. Ill, c. 25, ss. 4 and 15 (1699). Milbanke's summation of the island's legal system in 1789 makes only one reference to King William's Act: 'The Act of 10th and llth of William III... provides amply for the settlement of disputes respecting the right and property of fishing rooms.' See Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), f. 22, in Lambert, ed., House of Commons Sessional Papers, doc. 4385. 10 & 11 Wm. Ill, c. 25, s. 14 (1699). Governor's order, 4 Sept. 1792, PANL, GN 2/1/A, vol. 12,139. Minutes of the Placentia Surrogate Court, 26 Sept. 1770, PANL, GN 5/4/ C/l. Minutes of the Trinity District Court, 2 Oct. 1755, PANL, GN 5/4/B/l. Order of Governor Rodney, undated [1749], PANL, GN 2/1/A, vol. 1, 76. 15 Geo. Ill, c. 31 (1775). Minutes of the Ferryland District Court, 25 Aug. 1784 and 2 Aug. 1785, PRL, 340.9/N45 VT; Minutes of the Ferryland District Court, 21 Oct. 1788, PANL, GN5/4/C/1. Minutes of the Fishing Admirals' Court, Fermeuse, 25 July 1752, PANL, GN 2/1/A, vol. 1, 349-50. On the administration of leasehold property and the use of equity under English law, see W.R. Cornish and G. de N. Clark, Law and Society in England, 1750-1950 (London: Sweet and Maxwell, 1989), 121-45. Minutes of the Fishing Admirals' Court, Ferryland, 2 Oct. 1752, PANL, GN 2/1/A, vol. 2,121. Minutes of the Fishing Admirals' Court, Fermeuse, 2 Sept. 1754, PANL, GN 2/1/A, vol. 2,116. Orders to the Fishing Admirals, St John's, 19 Apr. 1784, PANL, GN 2/1/A, vol. 10,13. On the use of such customs under English common law, A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press, 1987), esp. 362-68; R.J. Walker and M.G. Walker, The English Legal System, (3rd ed. (London: Butterworths, 1972), chap. 3; Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford: Clarendon Press, 1964), chap. 2.

Notes to pages 54-9 319 115 Minutes of the Fishing Admirals' Court, St John's, 21 Apr. 1784, PANL, G N 2 / 1 / A , vol. 10,14-18. 116 Orders to the Fishing Admirals, St John's, 18 Sept. 1784, PANL, GN 2/1/ A, vol. 10, 68-9. 117 Minutes of the Fishing Admirals' Court, St John's, 20 Sept. 1784, PANL, GN 2/1/A, vol. 10,69-73. 118 Minutes of the Fishing Admirals' Court, St John's, 14 Oct. 1786, PANL, GN 2/1 / A , vol. 11,106-11. 119 Ibid. 120 Minutes of the Fishing Admirals' Court, Ferryland, 10 Sept. 1787, PANL, GN5/4/C/1. 121 Prowse claimed that in the fishing admirals' courts, 'the litigant who commenced his case with the production of a flowing bowl of calabogus [a mixture of rum, molasses, and spruce beer] captivated the judicial mind most effectually. Sometimes, alas! the dignity of the Bench was diminished by the sudden fall of the Court, prostrate on the floor, overcome by the too potent effects of new rum and spruce beer.' See Prowse, History of Newfoundland, 226. 122 Minutes of the Fishing Admirals Court, Fermeuse, 25 July 1752, PANL, GN 2/1 /A, vol. 1,349-50. 123 For example, the 155 cases heard by the magistracy in Trinity from 1760 to 1790 break down into four main categories: disputes between masters and servants (44 per cent); civil suits between and among merchants and planters (20 per cent); criminal trials (12 per cent); and other types of actions, such as disputes over wills, or those which could not be completely identified (24 per cent). See PANL, GN 5/4/B/l, boxes 1 and 2. 124 O'Flaherty, 'King William's Act,' 21-8. 125 On the difference between the law in force and the law as enforced in colonial regimes, see Jim Phillips, "'Securing Obedience to Necessary Laws": The Criminal Law in Eighteenth-Century Nova Scotia,' Nova Scotia Historical Review 12, 2 (1992): 87-124. 126 On the question of historical certainty, see Simon Schama, Dead Certainties (Unwarranted Speculations) (New York: Vintage, 1991), 320. 127 On the burden of historical proof, see David Hackett Fischer, Historians' Fallacies: Towards a Logic of Historical Thought (New York: Harper and Row, 1970), 62. 128 See David Lowenthal, The Heritage Crusade and the Spoils of History (Cambridge: Cambridge University Press, 1998), xv.

320 Notes to pages 64-8 Chapter 3: An Unruly Set of People: The Struggle for Judicial Authority 1 Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton: Princeton University Press, 1985), 7. 2 On legal pluralism generally, see John Griffiths, 'What is Legal Pluralism?/ Journal of Legal Pluralism 24 (1986): 1-55; and Louis Knafla and Susan Binnie, 'Law and Legal Pluralism in the Making of Modern Societies/ in Knafla and Binnie, eds., Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press), 3-29. 3 From 1724 to 1748 the Duke of Newcastle served as the secretary of state for the Southern Department, which dealt with the colonies from 1702 until the creation of a separate secretaryship for the American Department in 1768. On imperial administration, see Hugh Egerton, A Short History of British Colonial Policy (London: Methuen, 1928), 549-53; W.A. Speck, Stability and Strife: England, 1714-1760 (Cambridge: 1977), 231^ and 252-4; and James Henretta, 'Salutary Neglect': Colonial Administration under the Duke of Newcastle (Princeton: Princeton University Press, 1972). 4 Board of Trade to Newcastle, 20 Dec. 1728, CSPC, vol. 36,279-84. 5 Ibid., vol. 36,283. 6 Ibid., vol. 36, 284. 7 Report of the Committee of Privy Council, 19 Apr. 1729, CSPC, vol. 36, 351. See also Acts of the Privy Council of England Colonial Series (London: His Majesty's Stationary Office, 1910-) 3: 216-17. 8 Board of Trade to the Committee of the Privy Council, 14 May 1729, CSPC, vol. 36, 375. 9 Lord Vere to Burchett, 19 Aug. 1728, CSPC, vol. 36, 223. 10 If Lord Vere had accepted an office of emolument under the Crown, he would have had to vacate his parliamentary seat. He could have stood for re-election, but there was not enough time to make the necessary arrangements, since the convoy was preparing to make sail. The practice of appointing a separate commodore and governor ended when Captain George Clinton assumed both posts in 1731. It revived temporarily in 1750, when Captain Rodney resigned as governor yet continued as commodore, but in this case Rodney remained the unquestioned de facto leader of the island's government. 11 Board of Trade to the Committee of the Privy Council, 14 May 1729, CSPC, vol. 36, 376. 12 Ibid. Osborne's name was inserted into the final commission on 22 May 1729.

Notes to pages 68-72 321 13 On the Royal Navy in Newfoundland during this period, see Olaf Uwe Janzen, The Royal Navy and the Defence of Newfoundland During the American Revolution/ Acadiensis 14,1 (Autumn 1984): 28-48. 14 Commission of Captain Henry Osborne, 31 May 1729, CSPC, vol. 36, 377. 15 Joseph Shaw, The Practical Justice of the Peace, 2 vols. (London, 1728). On justice's manuals, see J.M. Beattie, Crime and the Courts in England (Princeton: Princeton University Press, 1986), 59-67; John A. Conley, 'Doing It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America,' Journal of Legal History 6, 3 (December 1985): 257-98. 16 The towns to receive the manuals were: Placentia, St John's, Carbonear, Bay Bulls, St Mary's, Trepassey, Ferryland, Bay de Verde, and Old Perlican. 17 Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993), esp. 232-8. 18 Osborne to Newcastle, 14 Oct. 1729, CSPC, vol. 36, 504. 19 Newfoundland commission of the peace, undated (c. 1729), PRO, CO 194/ 8,228-32. Commissions of the peace were issued every three years with the appointment of a new governor. For a comparison with the commission of the peace used in Georgian England, see E.N. Williams, ed., The Eighteenth Century Constitution, 1688-1815: Documents and Commentary (Cambridge: Cambridge University Press, 1965), 283-5. 20 Keen was well known for his efforts to apprehend offenders and to promote legal reforms; Southmayd had acted as a magistrate in the 1723-4 court at St John's. See Keith Matthews, 'William Keen/ DCB, 3: 323-4. 21 Lord Vere to Board of Trade, 18 Aug. 1729, CSPC, vol. 36, 471-2. 22 List of judicial districts in Newfoundland, 1729, PRO, CO 194/8, 226. The six original districts were: Bonavista (3 JPs and 3 constables); Trinity (3 and 9); Carbonear-Harbour Grace (none in 1729); St John's (3 and 7); Ferryland (5 and 5), and Placentia (3 and 4). 23 Osborne to Newcastle, 14 Oct. 1729, CSPC, vol. 36, 504-5. 24 Ibid. 25 Governor's proclamation, 5 Oct. 1729, CSPC, vol. 36, 516. 26 Osborne to Newcastle, 14 Oct. 1729, CSPC, vol. 36, 504-5. 27 10 & 11 Wm. Ill, c. 25, s. 1 (1699). 28 Henry Jones and John Henning to Osborne, 8 Dec. 1729, CSPC, vol. 37, 79. 29 Minutes of the Board of Trade, 9 and 17 Apr. 1730, PRO, CO 391/39, 83-4, 93. Although listed as part of the Colonial Office Papers, the CO 391 series comprises only the minutes of committee meetings at the Board of Trade and does not contain any colonial correspondence. 30 Lord Vere and Osborne to Board of Trade, 17 Apr. 1730, CSPC, vol. 37, 86. 31 Solicitor General Fane to the Board of Trade, 26 Apr. 1730, CSPC, vol. 37,90;

322 Notes to pages 73-5

32 33

34 35

36 37 38 39 40

41 42 43

44 45 46

Attorney General Yorke to the Board of Trade, 27 Apr. 1730, PRO, CO 194/ 21,1-3. 10 & 11 Wm. Ill, c. 25, s. 1 (1699); 11 & 12 Wm. Ill, c. 19 (1700). On the English system for building gaols, see Beattie, Crime and the Courts, 292—3. Quoted from the printed version of the Attorney-General's report, 27 Apr. 1730, printed in George Chalmers, ed., Opinions of Eminent Lawyers on Various Points of English Jurisprudence, Chiefly Concerning the Colonies, Fisheries and Commerce of Great Britain: Collected and Digested from the Originals in the Board of Trade, and Other Repositories (Burlington: C. Gooderich, 1858), 5368. An extract of this report also appears at CSPC, vol. 37, 91-2. He pointed out that the fines could then be applied to the cost of repairing damaged stocks or whipping-posts. The attorney general's report concluded that neither Captain Osborne nor the justices of the peace had the power to raise taxes for public works except in cases cited specifically in statute. Attorney General Fane to the Board of Trade, 13 May 1730, CSPC, vol. 37, 108. Board of Trade to Osborne, 13 May 1730, CSPC, vol. 37,108-9. Board of Trade to Newcastle, 12 June 1730, CSPC, vol. 37,145. Report of Peter Signac, Thomas Salmon, and Thomas Buchanan, 16 May 1730, PRO, CO 194/9, 21-2. Ibid. In an accompanying undated petition to Governor Osborne, the three magistrates reiterated that the 'Admirals have plainly told us we were only Winter Justices [underlined in the original] and seemed to doubt of your authority of appointing of justices, and that their authority was by Act of Parliament, that your Honours [sic] was only from the Privy Council.' See PRO, CO 194/9,14. Report of Peter Signac, Thomas Salmon, and Thomas Buchanan, 16 May 1730, PRO, CO 194/9, 21-2. Ibid. This passage was underlined in the original, presumably by Governor Osborne. The link between control over punishment and the process of upholding social authority is addressed nicely in David Garland's critique of Durkheim's model of hegemony. See Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: Clatendon Press, 1990), 54-61. Report of Peter Signac, Thomas Salmon, and Thomas Buchanan, 16 May 1730, PRO, CO 194/9, 21-2. Osborne to Board of Trade, 8 Sept. 1730, CSPC, vol. 37, 263. Patrick O'Flaherty also makes this point in Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), 70 and 223. Keith Matthews erro-

Notes to pages 75-80 323

47 48 49 50 51 52 53 54 55 56 57

58 59 60

61 62 63 64 65 66 67 68

69 70

neously assumed that the justices' authority was restricted to the winter months: see Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books, 1988), 101-02. Osborne to Newcastle, 25 Sept. 1730, CSPC, vol. 37, 289-91. Ibid. Ibid. Proclamation of Governor Osborne, 12 Aug. 1730, PRO, CO 194/9, 22. CSPC, vol. 37,289-91. CSPC, vol. 37, 290. PRO, CO 194/9, 64-5. Keen to Popple, 27 Oct. 1730,PRO, CO 194/9, 66. Lord Vere to Board of Trade, 26 Sept. 1730, CSPC, vol. 37, 291-2. Newcastle to Board of Trade, 24 Nov. 1730, PRO, CO 194/9,1. Report of the Attorney General, 29 Dec. 1730, PRO, CO 194/9, 3-6. A printed version appears at Chalmers, ed., Opinions of Eminent Lawyers, 53841. Queries submitted to the Privy Council, 12 Jan. 1731, PRO, CO 194/9, 70. Memorandum from Francis Fane to the Board of Trade, 24 Mar. 1731, PRO, CO 194/9,140. A printed extract of this report appears at CSPC, vol. 38, 76. Christopher English, 'Newfoundland's Early Laws and Legal Institutions: From Fishing Admirals to the Supreme Court of Judicature in 1791-92,' Manitoba Law Journal 23 (Jan. 1996): 57-78 at 71. PRO, CO 391/38, 68, 77, 87. CSPC, vol. 38, 208. Petition of William Weston and Allen Southmayd, 10 June 1731, PRO, CO 194/9, 134-5, emphasis added. See Appendix 3.1. See Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley: University of California Press, 1984), 19-45. Proclamation of Captain Henry Osborne, 13 June 1731, PRO, CO 194/9, 136-7, Order of Governor Clinton, 12 July 1731, CSPC, vol. 38, 208. Osborne to Board of Trade, 28 July 1731, PRO, CO 194/9,131-3. Osborne had sent essentially the same letter to the Duke of Newcastle on 25 July 1731. For examples of Clinton's efforts to censure local opposition, see CSPC, vol. 38, 207-8 and 277-8. The orders are reprinted in CSPC, vol. 38, 278-80. On the Treaty of Utrecht and the issue of policing the French Shore, see James Hiller, 'Utrecht Revisited: The Origins of French Fishing Rights in Newfoundland Waters,' New-

324 Notes to pages 80-4 foundland Studies 7,1 (Spring 1991): 23-39; and James Hiller, The Newfoundland Fisheries Issue in Anglo-French Treaties, 1713-1904,' The Journal of Imperial and Commonwealth History 24,1 (Jan. 1996): 1-23. 71 On the administration of the Royal Navy, see chapter 1, note 77, above. 72 A summary of the orders is printed in CSPC, vol. 38, 277. 73 Order of a general court held at St John's, 21 Sept. 1731, CSPC, vol. 38, 281. 74 Clinton to Fishing Admirals of St John's, 23 Sept. 1731, PRO, CO 194/9,109. The quotation is from the printed version at CSPC, vol. 38, 282. 75 Weston and Southmayd to Clinton, 20 Aug. 1731, PRO, CO 194/9,103-5. 76 CSPC, vol. 38,277-78. 77 Most of the officers who acted as surrogate judges were lieutenants, however, when they were given command of a vessel, they assumed the courtesy title of 'captain.' Midshipmen, who appeared in increasing numbers later in the century, were designated 'esquire' in the court records. 78 CSPC, vol. 38, 278. 79 The correspondence between Brooks and Rowe is contained in PRO, CO 194/9,117-24. The quotations are from the printed extracts in CSPC, vol. 38, 283-^. 80 On the regulation of Catholicism in Newfoundland, see Hans Rollmann, 'Religious Enfranchisement and Roman Catholics in Eighteenth-Century Newfoundland/ in T. Murphy and C. Byrne, eds., Religion and Identity: The Experience of Irish and Scottish Catholics in Atlantic Canada (St John's: Jesperson Press, 1987), 34-52. 81 25 Chas. II, c. 2 (1673); 1 Geo. I, stat. 2, c. 13 (1714). 82 On the role of Protestantism in British political culture, see Linda Colley, Britons: Forging the Nation, 1707-1837 (New Haven: Yale University Press, 1992), 18-54. 83 Brooks asked the St. John's justices for advice on how to reply to this insult, but was told to do nothing other than ensure his orders were carried out. See CSPC, vol. 38, 284. 84 Dispatches from Trinity justices, 17 Aug. 1731, PRO, CO 194/9,116,119, and 123. 85 Taverner and Floyd to St John's justices, 17 Aug. 1731, PRO, CO 194/9,116. 86 To exacerbate matters, the local garrison commander asserted that Clinton and Osborne had visited Placentia for only a few hours the entire summer. See Fishing Admirals of Placentia to Lieutenant-Governor S. Gledhill, 10 Sept. 1731; Gledhill to Newcastle, 30 Sept. 1730 CSPC, vol. 38, 274-5. 87 Clinton to Board of Trade, 1 Oct. 1731, CSPC, vol. 38, 275. 88 Memorandum from the Attorney General, Nov. 1731, PRO, Secretary of State's Papers [SP], 36/25/90, 75. This passage was underlined in the origi-

Notes to pages 84-6 325

89 90

91 92 93

94 95 96 97 98

nal. The memorandum appears to be a summary of Clinton's letter to the Board of Trade on 1 October 1731. An original copy appears at PRO, CO 194/9, 90-1.1 thank Greg Smith for providing copies of several of the State Papers relating to Newfoundland. Newcastle to Board of Trade, 23 Nov. 1731, CSPC, vol. 38, 355. Ralph Lounsbury speculated that 'the principle reason for the arrogant attitude of the West Country fishing admirals and shipmasters was their appreciation of the growing power of parliament and the contemporary decline in the constitutional prestige of the Privy Council. Because of their residence in England the West Country fishermen were in a better position to understand the political changes which were taking place in Great Britain at this time than were the Newfoundlanders.' See Ralph Lounsbury, The British Fishery at Newfoundland, 1634-1763 (1934; reprinted, New York: Archon Books, 1969), 285. Lounsbury rather characteristically overstated his point, but the suggestion that the appeal to parliamentary supremacy was rooted in contemporary politics does have merit. For a synopsis of Whig politics under Walpole, see Paul Langford, A Polite and Commercial People: England, 1727-1783 (Oxford: Oxford University Press, 1989), 9-59; Wilfrid Prest, Albion Ascendant: English History, 1660-1815 (Oxford: Oxford University Press, 1998), 120-31. Minutes of the Board of Trade, 8 Feb. 1732, PRO, CO 391/41, 49. Petition of the merchants of Dartmouth, undated (Feb. 1732), CO 194/23, 152-3. The petition was read at the Board of Trade on 8 February 1732. Petition of the merchants of Poole, 1 Feb. 1732, PANL, CO 194/23,154-5; petition of the merchants of Bristol, undated [1732], PANL, CO 194/23. The Poole petition was signed by forty-seven men, while the one from Bristol was signed by sixty-five merchants. The minutes of the Board of Trade refer to the Poole document as a petition from the mayor, aldermen, and merchants. See Minutes of the Board of Trade, 22 Feb. 1732, PRO, CO 391/41, 71. Affidavit of Peter Shank, undated [1732], PANL, CO 194/23,155-56. Affidavit of John Moors and Joseph Vallis, 11 Feb. 1732, PANL, CO 194/23, 158-9. Ibid. Ibid. Keen's answer is contained in an untitled typescript collection of miscellaneous documents (1731^3), housed at the Provincial Resource Library, Newfoundland Collection, VAULT 338.3 P94,1-2. A complete copy of this typescript material is also preserved in the records of the Newfoundland Historical Society.

326 Notes to pages 86-8 99 CSPC, vol. 39, 95-6. A committee at the Board of Trade had gathered together all the various letters and documents concerning Newfoundland, and summoned Governor Clinton to a meeting on 21 March 1732. Clinton then submitted a report, which was read in early April, but no further action was taken, and the materials were merely passed on to the Duke of Newcastle. See Minutes of the Board of Trade, 21 Mar. and Apr. 1732, PRO, CO 391/41, 91,103,105. 100 For a summary of the new orthodoxy concerning mercantile power, see Olaf Uwe Janzen, 'Response to Garfield Fizzard's essay, "Newfoundland's First Known School/" Newfoundland Studies 12,1 (Spring 1996): 50-3. On the historiography of the merchants generally, see Sean Cadigan, 'Planters, Households and Merchant Capitalism: Northeast-Coast Newfoundland, 1800-1855,' in Daniel Samson, ed., Contested Countryside: Rural Workers and Modern Society in Atlantic Canada, 1800-1950 (Fredericton: Acadiensis Press, 1994), 151-9. 101 Popple to Newcastle, 6 Apr. 1732, PANL, CO 194/23,148-9. 102 The administrative problems in Newfoundland appear to have received no further substantive discussion after the spring of 1732, and the extant minutes of the Board of Trade for next five years (PRO, CO 391, vols. 41-6 inclusive) are restricted to purely routine bureaucratic matters, e.g., the appointment of the island's naval governor. 103 CSPC, vol. 42, 65-72 (1735 returns to the heads of inquiry). 104 CSPC, vol. 42, 277-81 (1736 returns to the heads of inquiry), vol. 43, 248 (1737 returns to the heads of inquiry). 105 For an overview of Britain's imperial strategy in this period, see Paul Kennedy, The Rise and Fall of British Naval Mastery (London: Penguin, 1976), chap. 3. 106 It should be noted that the scope of the Royal Navy's activities did not yet encompass the entire island and was particularly limited along the South and West Coasts. See Olaf Uwe Janzen, '"Une petite Republique" in South western Newfoundland: The Limits of Imperial Authority in a Remote Maritime Environment,' in Lewis R. Fischer and Walter Minchinton, eds., Research in Maritime History, Vol. 3: People of the Sea (St John's: International Maritime Economic History Association, 1992), 1-33; Olaf Uwe Janzen, 'Of consequence to the Service: The Rationale Behind Cartographic Surveys in Early Eighteenth-Century Newfoundland/ The Northern Mariner/ Le Marin du Nord 11,1 (Jan. 2001): 1-10. 107 CSPC, vol. 39, 222-6 (1732 returns to the heads of inquiry). 108 CSPC, vol. 42, 65-72. 109 Ibid.

Notes to pages 88-90 327 110 CSPC, vol. 44, 235-7, (1738 returns to the heads of inquiry). 111 10 & 11 Wm. Ill, c. 25, s. 15 (1699). 112 N.A.M. Rodger, The Wooden World: An Anatomy of the Beorgian Navy (Glasgow; William Collins, 1986), chap. 6; John Byrn, Crime and Punishment in the Royal Navy: Discipline on the Leeward Islands Station, 1784-1812 (Aldershot, UK: Scolar Press, 1989), chap. 3. For a discussion of the historiography of naval punishment, see Greg Dening, Mr. Bligh s Bad Language: Passion, Power and Theatre on the Bounty (Cambridge: Cambridge University Press, 1992), 113-16 and 377-96. 113 The Articles of War are contained in the 1749 Navy Act (22 Geo. II, c. 33). Regulations and Instructions Relating to His Majesty's Service at Sea was printed annually after the first edition in 1731, although few alterations were made in subsequent editions. Both the Articles of War and the Instructions are reprinted in Brian Lavery, ed., Shipboard Life and Organization, 1731-1815 (London: Navy Records Society, 1998), part E. 114 For a reappraisal of the extent and nature of corruption in the Royal Navy, see Baugh, British Naval Administration in the Age of Walpole (Princeton: Princeton University Press, 1965), chaps. 3, 6-7. 115 John Crowley, 'Empire versus Truck: The Official Interpretation of Debt and Labour in the Eighteenth-Century Newfoundland Fishery/ Canadian Historical Review 70, 3 (Sept. 1989): 311-36. 116 See Rodger, Wooden World, 252-72; Prowse, History of Newfoundland, 365. 117 On the Royal Navy in China, British Columbia, and the Northwest coast, see Christopher Munn, 'The Chusan Episode: Britain's Occupation of a Chinese Island, 1840-6,' Journal of Imperial and Commonwealth History 25,1 (Jan. 1997): 82-112; Barry Gough, Gunboat Frontier: British Maritime Authority and Northwest Coast Indians, 1846-1890 (Vancouver: UBC Press, 1984); Barry Gough, 'Official Uses of Violence Against Northwest Coast Indians in Colonial British Columbia,' in James W. Scott, ed., Pacific Northwest Themes: Historical Essays in Honour of Keith A. Murray (Bellingham: Ceter for Pacific Northwest Studies, 1978), 43-69; Jane Samson, 'Commodore Justice on the Northwest Coast: What Law did the Royal Navy Represent and Enforce?' (paper presented to the legal history conference at the Faculty of Law, University of Manitoba, 3 Oct. 1997). 118 Ralph Pastore, 'Archaeology, History, and the Beothucks,' Newfoundland Studies 9, 2 (Fall 1993): 260-78. 119 See, inter alia, John Dickinson, 'Native Sovereignty and French Justice in Early Canada/ and Hamar Foster, 'The Queen's Law is Better than Yours: International Homicide in Early British Columbia/ both in Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian

328 Notes to pages 90-5 Law, Volume V: Crime and Criminal Justice (Toronto: The Osgoode Society, 1994), 17-40 and 41-111; Douglas Hay, 'The Meanings of the Criminal Law in Quebec, 1764—1774,' in L.A. Knafla, ed., Crime and Criminal Justice in Europe and Canada (Waterloo: Wilfrid Laurier University Press, 1981), 77-110. 120 On the English assize circuit and the elaborate ceremonies surrounding it, see Beattie, Crime and the Courts, 314-18; Douglas Hay, 'Property, Authority and the Criminal Law,' in Hay et al., eds., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975), 26-32. 121 CSPC, vol. 39, 227-8. 122 CSPC, vol. 41, 273-7 (1734 returns to the heads of inquiry). 123 CSPC, vol. 42, 65-72. On the need for cartographic surveys, see Janzen, 'Of consequence to the Service.' 124 CSPC, vol. 39, 222-6. (1732 returns to the heads of inquiry). 125 Ibid. 126 CSPC, vol. 40,194-7. 127 PANL,GN2/l/A,vol. 1,233. 128 CSPC, vol. 42, 65-72. 129 See PRO, ADM 1/3881, letters from Doctors' Commons, 10 Nov. 1747. 130 CSPC, vol. 42, 277-81. 131 CSPC, vol. 44, 62. 132 Minutes for 12 and 13 Apr. 1738, PRO, CO 391/47, 39. 133 PRO, CO 194/21, 7-12. 134 Ibid. 135 PRO, PC 2/94, 544-5. 136 In 1743 Governor Byng asserted that were it not for three or four traders at St John's who always opposed the government, there would never be any complaints. See the 1743 answers to the heads of inquiry, contained in an untitled typescript collection of miscellaneous documents (1731-43), housed at the Provincial Reference Library (Nfld. VAULT 338.3 P94), 21. 137 Lounsbury, The British Fishery at Newfoundland, 294; Gerald S. Graham, Empire of the North Atlantic: The Maritime Struggle for North America, 2nd ed. (Toronto: University of Toronto Press, 1958), 150; R.H. Cuff, ed., Dictionary of Newfoundland and Labrador Biography. (St John's: Harry Cuff Publications, 1990), 143, 353. 138 Julian Gwyn, 'The Royal Navy in North America, 1712-1776,' in Jeremy Black and Philip Woodfine, eds., The British Navy and the Use of Naval Power in the Eighteenth Century (Atlantic Highlands, NJ: Humanities Press International, 1988), esp. 133-6. 139 PRO, CO 391/56, 42-6; Acts of the Privy Council, vol. 4, 55 and 272.

Notes to pages 95-105 329 140 PRO, BT 6/89,167; C. Grant Head, Eighteenth Century Newfoundland: A Geographer's Perspective (Toronto: McClelland and Stewart, 1976), 54-7. 141 United Society for the Propagation of the Gospel, Calendar of Letters, 1721-1793, vol. 5. (London: List & Index Society, 1972), 61. 142 This point has been raised by W. Gordon Handcock, Soe longe as there comes noe women: Origins of English Settlement in Newfoundland (St John's: Breakwater Books, 1989), 135-6. 143 United Society for the Propagation of the Gospel, Calendar of Letters, 44. 144 Ibid., 150. 145 Newfoundland was far from unique in this respect. For an account of the difficulties in administering law along the West Coast, see Hamar Foster, 'Mutiny on the Beaver: Law and Authority in the Fur Trade Navy, 18351840,' in Dale Gibson and W. Wesley Pue, eds., Glimpses of Canadian Legal History (Winnipeg: University of Manitoba Legal Research Institute, 1991), 15-46. 146 Langdon to Elliot, 6 Sept. 1786, PRO, Admiralty Papers [ADM] 1/472, 233. 147 Gertrude Gunn, The Political History of Newfoundland, 1832-1864 (Toronto: University of Toronto Press, 1966), 100-9. 148 David Grayson Allen, In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill: Institute of Early American History and Culture, 1981); and Jim Phillips, '"Securing Obedience to Necessary Laws": The Criminal Law in Eighteenth-Century Nova Scotia,' Nova Scotia Historical Review 12 (1992): 87-124. 149 E.P. Thompson, Customs in Common: Studies in Traditional Popular Culture (New York: New Press, 1991), chap. 3. Chapter 4: The Establishment of Naval Government 1 A recent dictionary of biography contains entries for virtually every governor of Newfoundland except Rodney. See R.H. Cuff, ed., Dictionary of Newfoundland and Labrador Biography. (St John's: Harry Cuff Publications, 1990). As with many other facets of Newfoundland history, D.W. Prowse offers one of the few appraisals of Rodney's administration. See A History of Newfoundland from the English, Colonial and Foreign Records (1895; reprinted, Belleville, ON: Mika Studio, 1972), 291-2. 2 See Doron Ben-Atar, The American Revolution,' in Robin Winks, ed., The Oxford History of the British Empire, Volume V: Historiography (Oxford: Oxford University Press, 1999), 94-9.

330 Notes to pages 105-7 3 Nicholas Rogers, 'Confronting the Crime Wave: The Debate over Social Reform and Regulation, 1749-1753,' in Lee Davison et al., eds., Stilling the Grumbling Hive: The Response to Social and Economic Problems in England, 1689-1750 (New York: St Martin's Press, 1992); Paul Langford, A Polite and Commercial People: England, 1727-1783 (Oxford: Oxford University Press, 1989), 155-62. 4 See Horace Walpole, Memoirs of King George II, ed. J. Brooke (New Haven: Yale University Press, 1985), 1:175. On Lord Anson and the Royal Navy in politics generally, see Lewis Namier, The Structure of Politics at the Accession of George III (London: Macmillan, 1965), 29-36; Kathleen Wilson, 'Empire, Trade and Popular Politics in Mid-Hanoverian Britain: The Case of Admiral Vernon/ Past and Present 121 (1988): 74-109. 5 For example, Rodney earned £570 by carrying freight in 1749. Like other governors, he dabbled in the fishery and earned some additional income by transporting cured codfish. See David Spinney, Rodney (London: Allen and Unwin, 1969), 99. 6 Spinney cites Rodney's stand during the February crisis as the determining factor in the decision to appoint him governor of Newfoundland. See Rodney, 94. 7 Rodney was eventually returned as an MP in the 1751 by-election for the Admiralty's pocket-borough of Saltash. 8 Indeed, Rodney himself later stated that he 'had the honour of being Governor of that Island in the years 49, 50, and 51.' See Spinney, Rodney, 98. 9 On Rodney's contemporary reputation as an able administrator and ambitious officer, see, James Ralfe, The Naval Biography of Great Britain (1828; reprinted, Boston: Gregg Press, 1972), 1: 2-26. 10 Ian K. Steele, 'Metropolitan Administration of the Colonies, 1696-1775,' in Jack Greene and J. R. Pole, eds., The Blackwell Encyclopedia of the American Revolution (Oxford: Basil Blackwell, 1991), 14. 11 Rodney's administration is chronicled in PRO, 30/20/1-26, known as the Rodney Papers. This remarkably detailed collection, arguably the best of its kind, contains the logbook of HMS Rainbow (PRO, 30/20/4), and Rodney's letterbook as commodore from 1748 to 1752 (PRO, 30/20/6). Despite its richness, it has not been significantly utilized by Newfoundland historians. See Matthews, 'History of the West of England - Newfoundland Fishery' (D.Phil, thesis, Oxford University, 1968), 4 [bibliographic pagination]; N.A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy (Glasgow: William Collins, 1986), 374. 12 Spinney, Rodney, 95-102.

Notes to pages 108-12 331 13 There is no archival guide to the series, but the former director of the Provincial Archives of Newfoundland and Labrador, Mr David Davis, gave an excellent oral introduction, and Ms Patricia Kennedy, manuscript archivist at the National Archives of Canada, generously provided a written analysis of the collection. 1 wish to thank both Mr Davis and Ms Kennedy for their expert and kind assistance. The archival reference is GN 2/1/A. 14 Patricia Kennedy has pointed out that the Newfoundland Colonial Secretary's Letterbook shares many characteristics of the records kept in Quebec during the military regime (1759-64). Source: personal communication, December 1993. 15 Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford: Clarendon Press, 1964), chap. 2. 16 Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), f. 148 [testimony of John Reeves], in Sheila Lambert, ed., House of Commons Sessional Papers, Volume 90: Newfoundland, 1793-93 (Wilmington, DE: Scholarly Resources, 1975), 386. In following this course, Justice Reeves was following standard English jurisprudence. See R.J. Walker and M.G. Walker, The English Legal System, 3rd ed. (London: Butterworths, 1972), chap. 3. 17 Third Report from the House of Commons, f. 149, in Lambert, ed., House of Commons Sessional Papers, 387. 18 In its consideration of the customary right of servants to a lien on their masters' fish catch, Parliament relied upon a copy of the earliest extant order. Titled Governor Rodney's Order, and dated 19 August 1749, it was entered as an appendix into the committee's minutes. See Third Report from the House of Commons Committee, f. 192, in Lambert, ed., House of Commons Sessional Papers, 430. 19 Rodney Letterbook, PRO, 30/20/6. The manuscript is in its original state: unlike the Colonial Secretary's Letterbook, there are no page or folio references in this unbound archival collection; specific references cannot be made beyond the applicable dates, if known. 20 Rodney Letterbook, PRO, 30/20/6. 21 Ibid. 22 Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), ff. 7-37, in Lambert, ed., House of Commons Sessional Papers, 71-101. 23 See Appendix 4.3. 24 Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), f. 14, in Lambert, ed., House of Commons Sessional Papers, 78. 25 Rodney Letterbook, Emphasis added. PRO, 30/20/6. 26 Reeves, History of the Government of Newfoundland, 154.

332 Notes to pages 112-15 27 W.R. Cornish and G. de N. Clark, Law and Society in England, 1750-1950 (London: Sweet & Maxwell, 1989), 28. 28 See PRO, BT 1 /8, 61-2 (Report on the Judicature in Newfoundland, 5 Dec. 1792). On Reeves's administration see Peter Neary, 'John Reeves,' DCB, 5: 636-7. 29 The need for ships to deliver services to the outports continued beyond the age of sail. See, e.g., Ronald Rompkey, Grenfell of Labrador: A Biography (Toronto: University of Toronto Press, 1991), 31^ and 98-9. 30 Shannon Ryan, Newfoundland Consolidated Census Returns, 1698-1833 (St John's: Centre for Newfoundland Studies, Memorial University of Newfoundland, 1992), 56. 31 Matthews, Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books, 1988), chap. 9; Harold Innis, The Cod Fisheries: The History of an International Economy, 2nd ed. (Toronto: University of Toronto Press, 1954), esp. 306; Shannon Ryan, Fish out of Water: The Newfoundland Saltfish Trade, 1814-1914 (St John's: Breakwater Books, 1986), chap. 1. On the terminology used in the fishery, see G.M. Story, W.J. Kirwin, and J.D.A. Widdowson, eds., Dictionary of Newfoundland English, 2nd ed. (Toronto: University of Toronto Press, 1990), 63,129, 399-400, 463, 547-8. 32 In 1781, for example, Governor Edwards fined Luke Ryan ten pounds for selling beef for three pence more per pound than was legally allowed. See PANL, GN 2/1/A, vol. 9, 257. For other examples of the role of the courts in regulating prices, see GN 2/1/A, vol. 3, 123-6; vol. 7, 131; vol. 8, 12; vol. 10, 38-^3. 33 PRO, CO 194/9, 41. 34 PANL, GN 2/1/A, vol. 9,204. 35 BL, Add MS 15493, Sylvester Gardner, 'Some facts collected, and observations made on the fisheries, and government of Newfoundland.' (unpublished mss., 1784), f. 29. Gardner correctly noted the fees charged by the commissioners of oyer and terminer: his estimates on the costs of prosecution are therefore probably fairly accurate. 36 PRO, BT I/8, 82-3. 37 Rodger, Wooden World, 26,40, 55, 66,245, 258; Waldo E.L. Smith, 'The Navy as Moral Guardian: Newfoundland/ in Waldo E.L. Smith, The Navy and its Chaplains in the Days of Sail (Toronto: Ryerson Press, 1961). 38 BL, Add MS 38347, Archibald Buchanan, 'Concerning Landed Property in Newfoundland' (unpublished treatise, 1786), ff. 373-88. In addition to serving as a JP, Buchanan worked as the island's senior comptroller of customs: see PANL, GN 2/1 /A, vol. 8, 357 (appointment of comptroller of customs, 1782).

Notes to pages 115-19 333 39 Justice Reeves's history confirmed Buchanan's analysis. According to Reeves, 'Every matter, civil, and criminal, used to be heard, and determined in open court before the governor.' Reeves considered this to be a highly improper practice. See John Reeves, History of the Government of the Island of Newfoundland (1793; reprinted, New York: Johnson Reprints, 1967), 155. 40 BL, Add MS 38347, Buchanan, 'Concerning Landed Property in Newfoundland/ f. 386. 41 On courts of chancery and the administration of equity, see Cornish and Clark, Law and Society in England, 26-7. 42 BL, Add MS 38347, Buchanan, 'Concerning Landed Property in Newfoundland,' f. 386. This statement of course excludes maritime law and the actions cognizable by admiralty courts. 43 BL, Add MS 38347, Buchanan, 'Concerning Landed Property in Newfoundland/ f. 386. 44 PANL, G N 2 / 1 / A , vol. 1,43. 45 The proceedings of the governor's court appear at PANL, GN 2/1/A, vol. 1, 43-6. 46 PANL, GN 2/1/A, vol. 1,44. 47 PANL, GN 2/1 / A, vol. 1, 52-5 and 61-2. 48 PANL, GN 2/1 /A, vol. 1, 76. 49 PANL, GN 2 /1 / A, vol. 1, 34. 50 Keen to Rodney, 22 Nov. 1749, as quoted in Spinney, Rodney, 91. 51 PRO, CO 194/12, 171. 52 PRO, CO 194/12,172. 53 PRO, CO 194712,172-3 (report of the attorney general, 30 Jan. 1750). A printed version of Ryder's report appears in George Chalmers, ed., Opinions of Eminent Lawyers on various points of English Jurisprudenced, chiefly concerning the colonies, fisheries and commerce of Great Britain (Burlington, 1858), 541-2. 54 Minutes of the Board of Trade, 26 Mar. 1750, PRO, CO 391/57,141. 55 PRO, CO 194/12,175-6; Chalmers, ed., Opinions of Eminent Lawyers, 542-3. 56 Minutes of the Board of Trade, 28 Mar. 1750. PRO, CO 194/23, 270-1; CO 391/58,149. The Board of Trade sent Bedford a copy of the 1738 commission and instructions, along with Ryder's annotations. 57 The records of the court of oyer and terminer are discussed at length below; see Notes on Primary Sources. 58 Ryder added this last provision to the 1738 instructions: see Appendix 3.1. 59 PRO, CO 194 /12,176; CO 391 /58,162. A copy of the order-in-council appears at PRO, CO 194/12,177. For Drake's commission, see Appendix 4.2. 60 PANL, GN 2 / 1 / A , vol. 1, 111.

334 Notes to pages 119-24 61 The full sentence read: 'the said Lawrence Kneeves to the gaol of St. John's aforesaid from whence he came should be sent back and there remain till tomorrow twelve o'clock at noon, at which time before the Court house he should be burnt in the right hand with a hot iron markt with the letter R forfeit his goods and chattels paying the charges of the Court and be set at liberty.' See R. v. Kneeves, 1750 Assizes. 62 PANL, GN 2/1/A, vol. 11,100-1. 63 PANL, GN 2/1/A, vol. 1,192-7; PRO, CO 194/12,187-91 (returns to the heads of inquiry, 24 Dec. 1750). 64 PRO, CO 194/12,186. 65 An extract of Drake's letter appears at PRO, CO 194/21,17-18. 66 PRO, CO 391/59,110-11. 67 Issued 16 May 1751, the attorney general's opinion is reprinted in Chalmers, ed., Opinions of Eminent Lawyers, pp. 543-5. 68 Order-in-council, 4 June 1751, PRO, PC 2/102, 241-3. See Appendix 4.1 for the governor's instructions. 69 10 & 11 Wm. Ill, c. 25, s. 13 (1699). Section 13 directed that all suspected felons were to be brought to England for their trial. See above, Appendix 2.1. 70 For examples of prospective grand jurors refusing to serve, see PANL, CO 194/33, 93,120-4; GN 2/1/A, vol. 6, 35. 71 Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), ff. 12-19, in Lambert, ed., House of Commons Sessional Papers, 76-83. 72 Palliser's Act is parsed below, in chapter 7. 73 Alexander Campbell McEwen, 'Newfoundland Law of Real Property: The Origin and Development of Land Ownership' (PhD thesis, University of London, 1978), esp. 58-63. 74 Trudi Dale Johnson, 'Matrimonial Property Law in Newfoundland to the End of the Nineteenth Century' (PhD Thesis, Memorial University of Newfoundland, 1998), chap. 6. 75 Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), ff. 158-9 [testimony of John Reeves], in Lambert, ed., House of Commons Sessional Papers, 396-7. 76 Ibid. 77 10 & 11 Wm. Ill, c. 25, s. 5 (1699); 15 Geo. Ill, c. 31, s. 2 (1775). 78 For a summary of imperial policy on this point, see Matthews, Lectures on the History of Newfoundland, chap. 12. 79 BL, Add MS 38347, Buchanan, 'Concerning Landed Property in Newfoundland,'f. 381. 80 PANL, GN 2/1/A, vol. 8, 79. 81 PANL, GN 2/1 / A, vol. 8, 80.

Notes to pages 124-7 335 82 PANL, GN 2/1 / A, vol. 8, 82 (order to pull down the house of Luke Ryan), 103 (order to pull down a disorderly house kept by Wlm Gorman and John Maney), 105 (order to pull down the house of Mr. Murphy). 83 PANL, GN 2/1 / A, vol. 11, 65 (proclamation restricting buildings, 1786), 68 (proclamation relating to King William's Act, 1786). 84 PANL, GN 2/1/A, vol. 11, 242. 85 PANL, GN 2/1 / A, vol. 12, 37 (order to pull down premises owned by the firm Thomas and Stokes, 1789), 99 (order to pull down a house built by Alexander Long, 1790), 101 (order to pull down a chimney built by Mr Boney, 1790). 86 Patrick O'Flaherty, 'King William's Act (1699): Some thoughts 300 years later,' Newfoundland Quarterly 93, 2 (Winter 2000): 21-8. See also Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), 106-7. 87 See A.H. McLintock, The Establishment of Constitutional Government in Newfoundland, 1783-1832: A Study of Retarded Colonisation (London: Longmans, Green, 1941), 10-12,167-8, 204-5. 88 McEwen, 'Newfoundland Law of Real Property/ 86. 89 See Patrick O'Flaherty, 'Sir Francis Forbes,' DCB, 7: 301-4. 90 See below, chapter 5. 91 See Appendices 2.1, 3.1, 4.1, and 4.2. 92 See Appendix 4.3. 93 On the colonial reception of English law, see David Bell, 'The Reception Question and the Constitutional Crisis of the 1790s in New Brunswick,' University of New Brunswick Law Journal 29 (1980): 157-72; Barry Cahill, "How Far English Laws are in Force Here": Nova Scotia's First Century of Reception Law Jurisprudence,' University of New Brunswick Law Journal 42 (1993): 115-53; Jim Phillips, "'Securing Obedience to Necessary Laws": The Criminal Law in Eighteenth-Century Nova Scotia,' Nova Scotia Historical Review 12 (1992): 87-124. 94 Rodney Letterbook, PRO 30/20/6. 95 PANL, GN 2/1/A, vol. 1,250. 96 For the argument that naval officers shared a marked bias against merchants, see John Crowley, 'Empire versus Truck: The Official Interpretation of Debt and Labour in the Eighteenth-Century Newfoundland Fishery/ Canadian Historical Review 70, 3 (Sept. 1989): 311-36. 97 Harris formalized the quarter sessions records as a separate part of the minute book, titled: 'General Quarter Sessions of the Peace holden in Trinity Harbor for the said District on the thirteenth and thirty first of March in the thirty first year [of George II].'

336 Notes to pages 127-9 98 Letter to Governor Richard Edwards, dated 29 September 1758 and copied into the minutes, Trinity District, PANL, GN 5/4/B/l, box 1. 99 Entered into the back of the minute book, Harris's three-page instructions were titled: 'INSTRUCTIONS FOR THE CONSTABLES OF THE DISTRICT OF TRINITY/ which he introduced as: 'Your duty is, chiefly, to refrain, or quell all such as in your presence or within your jurisdiction, & limits; by deed or word shall go about to break the peace. To make hue and cry after murderers, robbers and other felons: And to execute all warrants and precepts to you directed; from justices of the peace and superior officers.' See PANL, GN 5/4/B/l, box 1. 100 See R. v. Barret, 1758 Quarter Sessions [undated], Trinity District, (PANL, GN 5/4/B/l, box 1). 101 The only one of its kind for early Newfoundland, this list was entered separately by Harris at the back of the minute book, with the title: 'The Warrants Issued Adjudications Made and the Other Judicial Proceedings had Out of the Sessions: By Saml. Harris, One of his Majesty's Justices of the Peace for the District of Trinity in Newfoundland (Copied from his Records). I the abovementioned Samuel Harris do under my Hand certifie unto all whom it doth or may concern that this is a true copy of the record or memorial kept by me. Sam Harris.' The records run from the beginning of 1757 to the end of 1758: see PANL, GN 5/4/B/l, box 1. 102 PRO, CO 194/5,26-7. Titled 'Captain Crowe's Laws,' a printed version appears at Prowse, History of Newfoundland, 271-2. See also D.B. Quinn, 'Josias Crowe,' DCB, 2:163-4, and above, chapter 2. 103 PANL, GN 2/1/A, vol. 2, 338-9 (Placentia); vol. 3, 317, 329, vol. 5, 45,140 (Harbour Grace); vol. 5, 58, 78-S7 (St John's); vol. 5, 207, vol. 6, 67-78 (Bonavista); vol. 6, 71 (Bay Bulls); vol. 2, 437-8,475-8, vol. 7, 33 (Trinity). 104 Bob Reece, '"Such a Banditti": Irish Convicts in Newfoundland, 1789. Part I,' Newfoundland Studies 13,1 (Spring 1997): 1-29. 105 18 Geo. Ill, c. 12 (1778). On the distinction between internal and external taxation, see Bernard Bailyn, The Ideological Origins of the American Revolution, 2nd ed. (Cambridge: Harvard University Press, 1992), 209-21. 106 PANL, GN 5/4/C/1, Placentia District Court Records, (minutes for 21 Sept. 1772). For other instances of local taxation in Placentia, see the court minutes for 2 Oct. 1760, 6 Sept. 1769, 25 Sept. 1770,1 Sept. 1773,11 July 1774, and 18 Sept. 1776. 107 PANL, CO 194/41, 31-2. The signatories to the petition were: William Gaden (commissioner of oyer and terminer); Adam McGlashan (grand juror in 1790); Alexander Stuart (grand juror); Richard Reed (grand juror); Henry Phillips (high sheriff); Nathan Phillips (agent to a merchant house;

Notes to pages 129-31 337

108

109

110

111 112 113 114

115 116

117

grand juror in 1786); James Stokes (English merchant; grand juror in 1788); William B. Thomas (English merchant); Robert Tremlett (English merchant; grand juror in 1788); John Gleeson (Irish merchant); Marmaduke Hart (grand juror); Hugh Rowe & Son (English merchants; Thomas Rowe was a grand juror); and John Rogers (commissioner of oyer and terminer). For the grand jury lists, see PANL, CO 194/38,19 (1788), 151 (1789), 262 (1790); for the commissioners of oyer and terminer, see PANL, GN 2/1 /A, vol. 12, 7 (1789); and on the merchants, see Keith Matthews, Profiles of Water Street Merchants (St John's: Maritime History Group, Memorial University of Newfoundland, 1980), passim. On the historiography of the merchants, see Sean Cadigan, 'Planters, Households and Merchant Capitalism: Northeast-Coast Newfoundland, 1800-1855,' in Daniel Samson, ed., Contested Countryside: Rural Workers and Modern Society in Atlantic Canada, 1800-1950 (Fredericton: Acadiensis Press, 1994), 151-9. For examples of merchants' petitions, see PANL, GN 2/1 / A, vol. 1, 250 (wages, 1751); vol. 4,14—17 (customs house, 1766); vol. 7, 60 (vice-admiralty court, 1777); vol. 7, 92, 105,120, 132,139 (defence works, 1778); vol. 10, 38, 40-3 (fish prices, 1784); vol. 12, 235 (convoys, 1793); vol. 12, 243 (British army garrison, 1794); vol. 12, 356 (naval impressment, 1795). This is, obviously, a simplification, for British historians have long debated the nature of eighteenth-century political ideology. For a standard account, see H.T. Dickinson, Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Methuen, 1977), chaps. 6-8. Proclamation of Governor Shuldham, 24 June 1772, PANL, GN 2/1/A, vol. 5, 59. Milbanke to Isaac Follett, 27 Sept. 1791, PANL, GN 2/1/A, vol. 12,112. These developments are discussed below, in chapter 8. William Douglass, A Summary, Historical and Political, of the First Planting, Progressive Improvements and Present State of British Settlements in North America (London: R. Baldwin, 1755), 1: 290. Douglass had first published this book in Boston in 1749 - the London edition was printed after his death in 1752 — and he was obviously unaware of the establishment of the island's court of oyer and terminer in 1750. Ibid. A.M. Lysaght, ed., Joseph Banks in Newfoundland and Labrador, 1766: His Diary, Manuscripts and Collections (Berkeley: University of California Press, 1971), 150. BL, King's MS 205, 'General Reports of the State of the American Colonies,' 345.

338 Notes to pages 131-42 118 Ibid. 119 Ibid. 120 On Palliser's attempt to enforce King William's Act (which he called 'the Fishing Act'), see PANL, GN 2/1/A, vol. 4,19, Governor's proclamation, 15 Sept. 1766. On Palliser's administration more generally, see Matthews, Lectures on the History of Newfoundland, chap. 20; William Whitely, 'Governor Hugh Palliser and the Newfoundland and Labrador Fishery, 17641768,' Canadian Historical Review 50, 2 (June 1969): 141-63; John Crowley, 'Empire versus Truck: The Official Interpretation of Debt and Labour in the Eighteenth-Century Newfoundland Fishery/ Canadian Historical Review 70, 3 (Sept. 1989): 311-36; and Olaf Uwe Janzen, 'Showing the Flag: Hugh Palliser in Western Newfoundland in 1764,' The Northern Mariner/Le Marin du Nord 3 (July 1993): 3-14. 121 Griffith Williams, An Account of the Island of Newfoundland, with the Nature of its Trade, and the Method of Carrying on the Fishery (London: T. Cole, 1765); Anon., The True Interest of Great-Britain, in Regard to the Trade and Government of Canada, Newfoundland, and the Coast of Labrador (London: J. Williams, 1767). 122 BL, Add MS 15493, Sylvester Gardner, 'Some facts collected, and observations made on the fisheries, and government of Newfoundland' (unpublished ms., 1784), f. 9. Gardner was a prominent Boston physician with royalist sympathies who came to Newfoundland after the American Revolution. 123 Ibid. 124 BL, Add MS 38347, Archibald Buchanan, 'Concerning Landed Property in Newfoundland' (unpublished treatise, 1786), ff. 373-88. Chapter 5: A Fief of the Admirality: Newfoundland under Naval Rule 1 Hansard's Parliamentary Debates, 2nd sen, vol. 24 (1830), 581 [Parliamentary Debates]. 2 As G.O. Rothney put it: 'In official eyes, "Newfoundland" became simply the English fleet moving west across the ocean in the spring, and returning back home to England again in the autumn.' See Newfoundland: A History (Canadian Historical Association Booklet no. 10, Ottawa, 1964), 11. 3 William Carson, Reasons for the Colonizing the Island of Newfoundland (Greenock: William Scott, 1813), 11-13; Patrick Morris, Remarks on the State of Society, Religion, Morals, and Education at Newfoundland (London: A. Hancock, 1827), 10-13. 4 On the dominance of imperial policy in Newfoundland historiography,

Notes to page 143 339

5

6

7

8

see Olaf Uwe Janzen, 'Newfoundland and the International Fishery/ in M. Brook Taylor, ed., Canadian History: A Reader's Guide, Volume One: Beginnings to Confederation (Toronto: University of Toronto Press, 1994), 280-310. Sean Cadigan, Hope and Deception in Conception Bay:, Merchant-Settler Relations in Newfoundland (Toronto: University of Toronto Press, 1995), chaps. 56. On the post-1832 era, see Philip McCann, 'Culture, State Formation and the Invention of Tradition: Newfoundland, 1832-1855,' Journal of Canadian Studies (Spring/Summer 1988): 86-103. Christopher English, 'From Fishing Schooner to Colony: The Legal Development of Newfoundland, 1791-1832,' in Louis Knafla and Susan Binnie, eds., Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press, 1995); Christopher English 'The Official Mind and Popular Protest in a Revolutionary Era: The Case of Newfoundland, 17891819,' in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume One: Law, Politics, and Security Measures, 1608-1837 (Toronto: The Osgoode Society, 1996); Christopher English, 'Newfoundland's Early Laws and Legal Institutions: From Fishing Admirals to the Supreme Court of judicature in 1791-92,' Manitoba Law Journal 23 (Jan. 1996): 57-78; Patrick O'Flaherty 'The Seeds of Reform: Newfoundland, 1800-1818,' Journal of Canadian Studies 23, 3 (Fall 1988): 39-56; Patrick O'Flaherty, 'Government in Newfoundland before 1832: The Context of Reform/ Newfoundland Quarterly 84, 2 (Fall 1988): 26-30; Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), chaps. 4-6. On the historiography of the state, see Allan Greer and Ian Radforth, 'Introduction/ in Greer and Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press, 1992), 1-16; Rainer Baehre, 'The State in Canadian History/ Acadiensis 24 (Autumn 1994): 119-33; Louis Knafla and Susan Binnie, 'Beyond the State: Law and Legal Pluralism in the Making of Modern Societies/ in Knafla and Binnie, eds., Law, Society, and the State, 3—33. Ralph Lounsbury noted the impact of war on the naval government in Newfoundland but overstated the relative decline in naval government. He characteristically dismissed the naval officers as incompetent at the best of times, noting that they sent few reports to England during the Seven Years' War. Lounsbury then tied this trend to the apparent total (and anomalous) lack of representative government and the fact that the island was unable because it was 'too isolated, its society too primitive' - to support formal legal institutions. Although based on a misreading of a narrow range of Colonial Office Papers, this view is still an accepted interpretation. However, the records of Colonial Secretary's Letterbook illustrate that the naval

340 Notes to pages 143-5

9

10 11

12

13

14 15

16

administration was definitely active throughout 1756-63. See R.G Lounsbury, The British Fishery at Newfoundland, 1634-1763 (New Haven: Yale University Press, 1934), esp. 309. On the administration of justice at St Pierre, see PANL, GN 2/1 / A, vol. 2, 69 (appointment of a Newfoundland justice of the peace), vol. 3, 57-9 and 80 (orders for the apprehension of a murder suspect). PANL, GN 2/1/A, vol. 2, 338-9 and 437. On the formation of the militia and the building of the church, see D.W. Prowse, A History of Newfoundland from the English, Colonial nd Foreign Records (London: Macmillan, 1895), 294-6. PANL, GN 2/1/A, vol. 2, 314, 426 and 502 (commission of Lt. Chapman, 1757-8), 323-40 and 455-60 (proceedings of surrogate court at Placentia, . 1757-8), 462-3 (proceedings of surrogate court at Trepassey, 1758), 375 (proceedings of surrogate court at Trinity, 1757); GN 2/1/A, vol. 3, 6 (proceedings of surrogate court at Trinity, 1759), 22 (proceedings of surrogate court at Ferryland, 1759). These records are partially duplicated in the surviving district minute books, which also contain proceedings not recorded in the Letterbook, such as Chapman's surrogate court in Trinity in 1758. See PANL, GN 5/4/B/l (Trinity District, minutes for 27-9 Sept. 1758); PANL, GN 5/4/C/l (Placentia District, minutes for 28 Aug. to 2 Sept. 1758). Gerald S. Graham, Empire of the North Atlantic: The Maritime Struggle for North America, 2nd ed. (Toronto: University of Toronto Press, 1958), 190-2; William Whiteley, 'Thomas Graves,' DCB, 4: 380-2; and Olaf Uwe Janzen, 'The French Raid upon the Newfoundland Fishery in 1762: A Study in the Nature and Limits of Eighteenth-Century Sea Power/ in William Cogar, ed., Naval History: The Seventh Symposium of the U.S. Naval Academy (Wilmington, DE: Scholarly Resources, 1988), 35-54. PANL, GN 5/4/C/l (Placentia District, minutes for 18 Aug. 1762). The records list Brown as 'esquire,' with no mention of an officer's commission: he was likely a midshipman aboard Graves's flagship. Gordon Handcock, 'The Lester Diaries' (paper given to the Wessex Society, St John's, Feb. 1995), 17-19; Gordon Handcock, The Story of Trinity (Trinity, NF: Trinity Historical Society, 1997), 15-18; D.F. Beamish, 'Benjamin Lester,' DCB, 4: 491-2. Dorchester Records Office, [DRO] D/LEG D365/F8, Records of the LesterGarland Families, Diary of Benjamin Lester (entry for 6 Oct. 1762). Although I have consulted the original manuscript at the DRO, this quotation is from the printed transcript prepared by Professor Gordon Handcock in the Department of Geography at Memorial University of Newfoundland, as are all subsequent references in this chapter. Citations to this manuscript source

Notes to pages 145-7 341 will be hereinafter shortened to Lester Diary Ms., with date of diary entry. I wish to thank Professor Handcock not only for freely discussing the diary with me and sharing his wealth of knowledge, but also for generously providing me with a full copy of the computerized transcript. 17 PANL, GN 2/1 / A, vol. 3,167-9 (minutes of the Trinity surrogate court, 7-9 Oct. 1762). The district minute.book contains no proceedings for 1762. 18 Lester recorded: 'John Tibbs and his brother William both whipped at the gallows with halters about their necks.' See Lester Diary Ms., 11 Oct. 1762. 19 Lester Diary Ms., 11 Oct. 1762. 20 Graves ordered Lester to pay for the gunpowder that the French occupying force had requisitioned at Trinity - Lester had taken the powder out of the local fort and had given it personally to the French commander - at a predetermined price. See Lester Diary Ms., 13 Oct. 1762. 21 Lester Diary Ms., 27 Oct. 1762. 22 On the responsibilities of a single justice, see Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley: University of California Press, 1984), 6-30. 23 Christopher English, 'The Reception of Law in Ferryland District, Newfoundland, 1786-1812' (paper presented to the Canadian Historical Association, Brock University, 1996), 24. 24 On maritime culture, see Daniel Vickers and Vince Walsh, 'Young Men and the Sea: The Sociology of Seafaring in Eighteenth-Century Salem, Massachusetts,' Social History 24, 1 (Jan. 1999): 17-38. 25 On the Royal Navy in colonial America, see Julian Gwyn, 'The Royal Navy in North America, 1712-1776,' in Jeremy Black and Philip Woodfine, eds., The British Navy and the Use of Naval Power in the Eighteenth Century (Atlantic Highlands, NJ: Humanities Press International, 1989), 143-4; Neil Stout, The Royal Navy in America, 1760-1775 (Annapolis: Naval Institute Press, 1973), chap. 6. 26 Born 1725 at Dartmouth, Harris had practised medicine at Trinity from 1747 to 1798. See Nigel Rusted, 'Medicine in Newfoundland c.1497 to the Early Twentieth Century: The Physicians and Surgeons, Biographical Gleanings/ Memorial University Occasional Papers in the History of Medicine 14(1994): 1-112 at 47. 27 Report on the Judicature in Newfoundland, 5 Dec. 1792, PRO, BT 1/8, 59. Though 'doctor' was used colloquially, formal records invariably stipulated 'surgeon.' Reeves claimed that surgeons in Newfoundland earned around £500 per year, though evidence points to more modest incomes. 28 The judicial role of surgeons is discussed further in Jerry Bannister, 'Surgeons and Criminal Justice in Eighteenth-Century Newfoundland,' in Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the

342 Notes to pages 147-8

29

30

31 32 33

34

35

Old World and the New: Essays in Honour ofJM. Beattie (Toronto: Centre of Criminology, 1998), 110-12. Accounts of medicine in early Newfoundland are contained in The Journal of James Yonge, 1647-1721, Plymouth Surgeon, ed. F.N.L. Poynter (London: Longmans, 1963), 58-60,120,133-7; The Newfoundland Journal of Aaron Thomas, Able Seaman in H.M.S. Boston, ed. J. Murray (London: Longmans, 1968), esp. 158. See also Rusted, 'Medicine in Newfoundland,' 37-73.1 am grateful to Professor J.K. Crellin for his help with the Faculty of Medicine sources at Memorial University. In most districts surgeons served as magistrates: Francis Bradshaw (Trepassey and Placentia); Nicholas Brand (Ferryland); John Brown (Placentia); John Clinch (Trinity); D'Ewes Coke (Trinity and St John's); Charles Cramer (Fortune Bay); John Dingle (Bay Bulls); Thomas Dodd (St John's); Jarvis Gossard (Placentia); Samuel Harris (Trinity); John Mills (Trinity); and Jonathan Ogden (St. John's). William Lilly, the coroner in Harbour Grace, was also a justice of the peace. Their commissions are recorded in PANL, GN 2/1/A, vol. 2,101; vol. 5, 97; vol. 6, 7; vol. 10, 22-8,163-72; vol. 11,198, 428; and vol. 12, 70. See also PRO, BT 1 /8,59; PRO, BT 6/57,191-6; Rusted, 'Medicine in Newfoundland,' 12-14, 22-30,42, 47; and Prowse, History of Newfoundland, 662. PRO, BT I/8, 59-60. On the Society in Newfoundland, see H.P. Thompson, Into All Lands: The History of the Society for the Propagation of the Gospel in Foreign Parts, 17011950 (London: S.P.C.K., 1951), chap. 6. Coke had served in various official capacities from 1772, when he was first appointed JP at Trinity, until 1797, when he resigned as chief justice due to ill health. Judge Prowse, who was no flatterer of the early justices, referred to Coke as 'a man of considerable ability, and firm, determined character.' See Prowse, History of Newfoundland, 360. Lounsbury, British Fishery at Newfoundland, 304; Keith Matthews, Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books, 1988), 123. See, generally, Ian K. Steele, 'Metropolitan Administration of the Colonies, 1696-1775,' in Jack Greene and J.R. Pole, eds., The Blackwell Encyclopedia of the American Revolution (Oxford: Basil Blackwell, 1991), 11-16; James Henretta, 'Salutary Neglect': Colonial Administration under the Duke of Newcastle (Princeton: Princeton University Press, 1972); Ian R. Christie, Wars and Revolutions: Britain, 1760-1815 (Cambridge: Harvard University Press, 1982), chap. 4. See, inter alia, Matthews, Lectures on the History of Newfoundland, chap. 20; William Whitely, 'Governor Hugh Palliser and the Newfoundland and

Notes to pages 148-51 343

36 37

38 39

40

41 42 43 44

45 46 47 48

49

Labrador Fishery, 1764-1768,' Canadian Historical Review 50, 2 (June 1969): 141-63. O'Flaherty, Old Newfoundland, 86. For discussions of the rather labyrinthine historiography surrounding Palliser's Act, see Olaf Uwe Janzen, 'Newfoundland and the International Fishery,' in M. Brook Taylor, ed., Canadian History: A Reader's Guide, Volume One: Beginnings to Confederation (Toronto: University of Toronto Press, 1994), 298-302; Sean Cadigan, 'Seamen, Fishermen and the Law: The Role of the Wages and Lien System in the Decline of Wage Labour in the Newfoundland Fishery,' in Colin Howell and Richard Twomey, eds., Jack and Tar in History: Essays in the History of Maritime Life and Labour (Fredericton: Acadiensis Press, 1991), 105-12. Cadigan, Hope and Deception, chap. 5. On the debate over the origins of the crackdown on colonial autonomy, see Doron Ben-Atar, The American Revolution,' in Robin Winks, ed., The Oxford History of the British Empire, Volume V: Historiography (Oxford: Oxford University Press, 1999), 98-9. On this point, see Olaf Uwe Janzen, 'Showing the Flag: Hugh Palliser in Western Newfoundland, 1764,' The Northern Mariner/Le Marin du Nord 3, 3 Quly 1993): 3-14. PANL, G N 5 / 4 / C / 1 (PlacentiaDistrict, minutes for 26 Sept. 1764). PANL, G N 5 / 4 / C / 1 (PlacentiaDistrict, minutes for 17 Sept. 1764 [Proclamation of Governor Hugh Palliser, 14 July 1764]). For example, when Michael Brazil appeared in court to give an affidavit, he was sworn by both Sexton and Edgecombe. PANL, GN 5 / 4 / C / l (PlacentiaDistrict, minutes for 13-28 Sept. 1764). Captain Sexton likely heard several additional cases: there is at least one page missing from the minute book for the proceedings of his court. PANL, GN 5 / 4 / C / l (PlacentiaDistrict, minutes for 25 Sept. 1764). PANL, GN 5 / 4 / C / l (PlacentiaDistrict, minutes for 25-6 Sept. 1764). Samuel Harris and John Garrett Blake to Governor Edwards, 19 Aug. 1758, PANL, GN 21' 1 / A, vol. 2, 437. The reluctance of merchants to serve as jurors during the summer fishery also contributed to the dearth of coroner's juries convened in Newfoundland: in 1772 D'Ewes Coke complained bitterly that he could not persuade merchants in Trinity to sit on a jury to investigate a homicide. See Bannister, 'Surgeons and Criminal Justice/ 114. PANL, GN 5 / 4 / B / l (Trinity District, minutes for 19 Aug. 1758 [copy of magistrates' letter] and 29 Sept. 1758 [original letter from Captain John Chapman to Harris and Blake]).

344 Notes to pages 153-7 50 51 52 53 54 55 56

Lester Diary Ms., 2 Aug. 1767. Lester Diary Ms., 16 Aug. 1767. Lester Diary Ms., 19 Aug. 1767. Lester Diary Ms., 20 and 23 Aug. 1767. Lester Diary Ms., 25 Sept. 1767. Ibid. William N. Glascock, Naval Sketchbook; or, the Service Afloat and Ashore, 2 vols. (London: Printed for the author, 1826), 180-1. Quoted from the extract printed in Waldo E.L. Smith, The Navy and its Chaplains in the Days of Sail (Toronto: Ryerson Press, 1961), 175-6. 57 This problem is most severe in Lounsbury, British Fishery at Newfoundland, passim, though it recurs in A.H. McLintock, The Establishment of Constitutional Government, in Newfoundland, 1783-1832: A Study of Retarded Colonisation (London: Longmans, Green, 1941), esp. chap. 3. 58 Quoted from Whitely, 'Thomas Graves,' DCB, 4: 382. 59 Writing as the conflict with America was erupting into war, Rodney portrayed Newfoundland in the 1750s as riddled with rebellious American merchants and traders, but while governor he had shown no difficulty getting along with William Keen - the most prominent New Englander on the island - or any other American, for that matter. See David Spinney, Rodney (London: Allen and Unwin, 1969), 98. 60 Elford to Lord Sydney, 14 May 1785, PANL, CO 194/36,15-16. 61 Elliot to Lord Sydney, 12 Aug. 1786, PANL, CO 194/36,134-5. 62 John Reeves, History of the Government of the Island of Newfoundland (1793; reprinted, New York: Johnson Reprints, 1967), 154—5. Emphasis in original. 63 PANL, GN 5/4/C/l (Placentia District, minutes for 23 May 1765). The planters were bound for fifty pounds each. 64 Lester Diary Ms., 19 and 23 January 1769. 65 The twenty-three social occasions listed in the entries for January 1769 break down into four categories: family (nine); circle of Newfoundland friends and associates (seven); acquaintances in Poole apparently unconnected to the Newfoundland trade (five); and visitors on maritime business (two). 66 Lester Diary Ms., 5 Jan. 1769. 67 Lester Diary Ms., 9 Jan. 1769. 68 Ibid. 69 Lester Diary Ms., 8-9 Feb. 1769. 70 Lester Diary Ms., 10 Feb. 1769. 71 Lester Diary Ms., 15 Feb. 1769. On the role of such informal networks of patronage in naval administration, see N.A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy (Glasgow: William Collins, 1986), chap. 7.

Notes to pages 157-9 72 73 74 75 76 77 78 79 80 81 82

83

84

85

86

87

88 89

345

Lester Diary Ms., 11 and 15 Feb. 1769. Lester Diary Ms., 17-18 Feb. 1769. Lester Diary Ms., 27-8 Feb. 1769. Lester Diary Ms., 1 Mar. 1769. Lester Diary Ms., 2 Mar. 1769. Lester Diary Ms., 3-4 Mar. 17.69. Lester Diary Ms., 10 Feb. (House of Commons debate) and 18 Feb. (election in Poole) 1769. Lester Diary Ms., 16 Feb. 1769. Lester Diary Ms., 11 Feb. (play at Covent Garden), 13 Feb. (exhibit of an Indian woman and son), and 2 Mar. (play at Drury Lane) 1769. Lester Diary Ms., 13 Feb. 1769. On the growth of polite society in the mid-eighteenth century, see Paul Langford, A Polite and Commercial People: England, 1727-1787 (Oxford University Press, 1989), chap. 3; Roy Porter, English Society in the Eighteenth Century, 2nd ed. (London: Penguin, 1990), chap. 6. Apart from the extensive time Lester spent supervising work at the dockside in Poole, he had a typical social life for a rising member of the English gentry. For a summary of this social world, see Mark Girouard, Life in the English Country House (London: Penguin, 1978), chap. 7. On the provincial elite in Dorset, see Derek Beamish, John Hiller, and H.F.V. Johnstone, Mansions and Merchants of Poole and Dorset (Poole: Poole Historical Trust, 1976), vol. 1, section III. The codfish can still be viewed in the dining room of Lester's mansion, which was a private club when I visited it in 1995.1 wish to thank Dr Alan Perry for giving me a guided tour of Poole. See Stephen Innes, Labor in a New Land: Economy and Society in SeventeenthCentury Springfield (Princeton: Princeton University Press, 1983), esp. chap. 2. John Elliott, 'Colonial Identity in the Atlantic World/ in Nicholas Canny and Anthony Pagden, eds., Colonial Identity in the Atlantic World, 1500-1800 (Princeton: Princeton University Press, 1987), 7. On the sense of dual identity that developed among many colonial elites, see H.V. Bowen, Elites, Enterprise and the Making of the British Oversees Empire, 1688-1775 (London: Macmillan Press, 1996), chap. 6. PANL, GN 2/1 / A, vol. 2, 63-4 (Bonfoy's proclamation); vol. 3, 275 (Palliser's decree). On liberal discourse, see Tina Loo, Making Law, Order, and Authority in British Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994), esp. 5-7

346 Notes to pages 159-62 90 According to English jurisprudence, 'Time out of mind is where no man then living hath heard or known any proof to the contrary: If two or more witnesses can depose that they heard their fathers say it was a custom all their time; and that their fathers heard their grandfathers say it was so also in their time; it is enough for the proof of a custom.' See Giles Jacob, A New Law-Dictionary, ed. J. Morgan (London: Strahan & Woodfall, 1783). 91 Governor's proclamation, 3 Sept. 1764, PANL, GN 2/1/A, vol. 3, 2423. 92 Ibid. 93 Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford: Clarendon Press, 1964) chap. 2; RJ. Walker and M.G. Walker, The English Legal System 3rd ed. (London: Butterworths, 1972) chaps. 1 and 3. 94 On the common law as a system of customary law, see A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press, 1987), esp. 362-8. 95 Alan Tully, The Political Development of the Colonies after the Glorious Revolution/ in Greene and Pole, eds., Blackwell Enclopedia of the American Revolution, chap. 2; Bailyn, Ideological Origins of the American Revolution, chap. 2; W.S. MacNutt, The Atlantic Provinces: The Emergence of Colonial Society, 1712-1857 (Toronto: McClelland & Stewart, 1965), chap. 5. 96 BL, King's MS 205, ff. 323-79, 'General Reports of the State of the American Colonies.' Quotation at f. 354. 97 The 1765 reports are reprinted in Lambert, ed., House of Commons Sessional Papers, Volume 90: Newfoundland, 25—46. 98 Matthews, Lectures on the History of Newfoundland, 123. 99 On the Stamp Act crisis, see Peter Thomas, 'The Stamp Act Crisis and its Repercussions, including the Quartering Act Controversy/ in Greene and Pole, eds., Blackwell Encyclopedia of The American Revolution, 113-25. 100 Governor's decree, 31 Oct. 1764, PANL, GN 2/1/A, vol. 3, 271. 101 Governor's decree, 3 Sept. 1764, PANL, GN 2/1/A, vol. 3, 275. 102 Crowley, 'Empire versus Truck/ 311-36. 103 10 & 11 Wm. Ill, c. 25, ss. 9-10 (1699); Head, Eighteenth Century Newfoundland, 92-3. For 'dieters' see chapter 1, note 37, above. 104 Governor's decree, 2 Oct. 1764, PANL, GN 2/1/A, vol. 3,251. 105 Governor's decree, 31 Oct. 1764, PANL, GN 2/1/A, vol. 3, 272. 106 17 Geo. II, c. 5, s. 23 (1744). On this use of transportation, see Beattie, Crime and the Courts, 512-13. 107 15 Geo. Ill, c. 31 (1775). 108 15 Geo. Ill, c. 31, ss. 17-18 (1775).

Notes to pages 162-4 347 109 The power of the vice-admiralty court to hear master-servant cases was repealed by s. 25 of 26 Geo. Ill, c. 26 (1786). There are few surviving records of the vice-admiralty court at St John's, and evidence indicates that the court rarely kept proper records. By the late 1770s, the court had become mired in a series of controversies over allegations of corruption and misconduct; it does not seem to have ever assumed a heavy caseload. For references to sittings of the vice-admiralty court, see PANL, GN 2/1/ A, vol. 2, 154 (1754), vol. 2, 243 (1755), vol. 2, 423 (1758), vol. 2, 501 (1758), vol. 3, 249 (1764), vol. 3, 290-2 (1765), vol. 4,18 (1766), vol. 4,18-21 (1766), vol. 5, 85 (1772), vol. 5, 121 (1772), vol. 7, 60 and 72 (1778), vol. 7,117 (1779). For complaints against vice-admiralty court judges, see vol. 7,15, 60 (1777); vol. 7, 149,172 (1778); vol. 11, 73-9,123 (1786); vol. 12, 50 (1789); vol. 12, 89, 91 (1790). 110 Lester Diary Ms., 6 Nov. 1770; PRO, ADM 1/470, 87 (Byron to Stephens, 14 Nov. 1771) and 145 (Shuldham to Stephens, 26 Nov. 1772). 111 PANL, GN 2Y 1 /A, vol. 7, 92,105, 120,132, and 139. 112 Graham, Empire of the North Atlantic, 208; Olaf Uwe Janzen, The Royal Navy and the Defence of Newfoundland during the American Revolution,' Acadiensis 14, 1 (Autumn 1984): 24-48. 113 David Syrett, The Royal Navy in American Waters, 1775-1783 (Aldershot, UK: Scolar Press, 1989), 72. 114 O'Flaherty, Old Newfoundland, 100-1; Olaf Uwe Janzen, 'The American Threat to the Newfoundland Fisheries, 1776-1777,' The American Neptune 48, 3 (Summer 1988): 154-64. 115 Stout, The Royal Navy in America, chap. 10; Nicholas Tracy, Navies, Deterrence, and American Independence: Britain and Seapoiver in the 1760s and 1770s (Vancouver: UBC Press, 1988), chap. 6. 116 Richard Hough, Captain James Cook: A Biography (London: Hodder & Stoughton, 1994), chap. 3. 117 A.M. Lysaght, ed., Joseph Banks in Newfoundland and Labrador, 1766: His Diary, Manuscripts and Collections (Berkeley. University of California Press, 1971), 150. Spelling and punctuation have been modified. 118 On Cook's surveys, see Head, Eighteenth Century Newfoundland, 161-5 and 180-4; William Whiteley, 'James Cook, Hugh Palliser, and the Newfoundland Fisheries, Newfoundland Quarterly 69, 2 (Oct. 1972), 17-22; J.R. Hill, ed., The Oxford Illustrated History of the Royal Navy (Oxford: Oxford University Press, 1995), 193. 119 At a court presided over by Durell, and attended by the district justices, depositions were taken from all of the available witnesses, including those who could speak only Irish, and the evidence formed the basis of the sub-

348 Notes to pages 164-7

120 121 122

123

124 125 126 127 128 129 130

131

132 133

sequent prosecution at the autumn assizes. See Bannister, 'Surgeons and Criminal Justice/ 123-4. Lysaght, Joseph Banks in Newfoundland and Labrador, 147. Spelling and punctuation have been modified. Ibid., 146-7. On the role of the Royal Navy in the projection of British power in this period, see Paul Kennedy, The Rise and Fall of British Naval Mastery (London: Penguin, 1976), chap. 4; Daniel A. Baugh, 'Maritime Strength and Atlantic Commerce: the uses of a "grand maritime empire/" in Lawrence Stone, ed., An Imperial State at War: Britain from 1689 to 1815 (New York: Routledge, 1994), 185-214. For an interesting account of the social dimensions of naval service, see Oliver Warner, A Portrait of Lord Nelson (London: Reprint Society, 1958), chap. 6. O'Flaherty, Old Newfoundland, 101; James Candow, 'The British Army in Newfoundland, 1697-1824,' Newfoundland Quarterly 79, 4 (Spring 1984): 21-8. For popular accounts of the Newfoundland Regiment, see Bernard Fardy, Before Beaumont Hamel: The Royal Newfoundland Regiment, 1775-1815 (St John's: Creative Publishers, 1995), chap. 2; G.W.L. Nicholson, The Fighting Newfoundlander. A History of the Royal Newfoundland Regiment (St John's: Government of Newfoundland, 1964). R.H. Cuff, ed., Dictionary of Newfoundland and Labrador Biography (St. John's: Harry Cuff Publications, 1990), 131. Calvin Evans, 'Aaron Graham/ DCB, 5: 361. PANL, CO 194/41, 23-5; GN 2/1/A, vol. 11,144 (civil establishment of Newfoundland, 1787). PANL, GN 2/1/A, vol. 6,109 (Fogo Island); vol. 10, 28 (Fortune Bay); vol. 11, 201 (Great St Lawrence); vol. 10, 215 (St Mary's). Lester Diary Ms., 30 Apr. 1789; Derek Beamish, 'Benjamin Lester/ DCB, 5: 491. There were nine ships stationed in 1793, five in 1797, seven in 1799, thirteen in 1805, ten in 1808, and twelve in 1812. See Lavery, Nelson's Navy, 247-50. Simon Devereaux, 'Convicts and the State: The Administration of Criminal Justice in Great Britain During the Reign of George III.' (PhD thesis, University of Toronto, 1997), chap. 4. On the cost of colonial administration as an important factor in imperial policy, see C.A. Bayly, Imperial Meridian: The British Empire and the World, 1780-1830 (London: Longman, 1989), 195 and 209. PANL, GN 2/1/A, vol. 11,114 (civil establishment, 1787), and 268 (estimate for building a new gaol and courthouse, 1786). Douglas Greenberg, 'Crime, Law Enforcement, and Social Control in

Notes to pages 167-8 349

134 135 136

137

138

139

140 141

Colonial America/ American Journal of Legal History 26 (1982): 293-325; Kathryn Preyer, 'Penal Measures in the American Colonies: An Overview/ American Journal of Legal History 26 (1982): 326-53; Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993), 47-51. Gordon Wood, The Radicalism of the American Revolution (New York: Vintage, 1991), 109-24. Daniel Vickers, 'Competency and Competition: Economic Culture in Early America/ William and Mary Quarterly 3rd ser., 47,1 (Jan. 1990): 3-29. Ruth Bleasdale, 'Class Conflict on the Canals of Upper Canada in the 1840s/ Labour/Le Travailleur 7 (1981): 9-39; Michael Cross, "The Laws Are like Cobwebs: Popular Resistance to Authority in Mid-Nineteenth Century British North America/" in T.G. Barnes, et al., eds., Law in a Colonial Society: The Nova Scotia Experience (Toronto: Carswell, 1984); Loo, Making Law, Order, and Authority, chap. 1. Susan Lewthwaite, 'Violence, Law, and Community in Rural Upper Canada/ in Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, Volume V: Crime and Criminal Justice (Toronto: The Osgoode Society, 1994), 353-86; Michael Cross, 'The Shiners' War: Social Violence in the Ottawa Valley in the 1830s/ Canadian Historical Review 54 (1973): 1-26. On the administration of Halifax, see Jim Phillips, 'The Operation of the Royal Pardon in Nova Scotia, 1749-1815,' University of Toronto Law Journal 42 (1992): 401-49; Barry Cahill, 'The Treason of the Merchants: Dissent and Repression in Halifax in the Era of the American Revolution/ Acadiensis 26, 1 (Autumn 1996): 52-70. On the debate over the thesis of garrison government, see Stephen Saunders Webb, 'Army and Empire: English Garrison Government in Britain and America, 1569-1763,' William and Mary Quarterly 3rd sen, 34 (1977): 1-31; Richard Johnson, The Imperial Webb: The thesis of garrison government in early America considered/ William and Mary Quarterly 3rd ser., 43 (1986): 408-30. John Shy, 'The American Colonies in War and Revolution, 1748-1783/ in P.J. Marshall, ed., The Oxford History of the British Empire, Volume II: The Eighteenth Century (Oxford: Oxford University Press, 1998), 308. Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994), chap. 4. For overviews of the political context in Georgian England, see Ian Christie, Wars and Revolutions: Britain, 1760-1815 (Cambridge: Harvard University Press, 1982), chap. 6; Wilfrid Prest, Albion Ascendant: English History, 1660-1815 (Oxford: Oxford University Press, 1998), chap. 12.

350 Notes to pages 168-73 142 Although Patrick O'Flaherty rejects most of Keith Matthews's arguments, they have both asserted that naval government was inherently illegitimate and constitutionally insecure. See O'Flaherty, Old Newfoundland, chap. 6; Matthews, Lectures on Newfoundland, chap. 22. 143 PANL, GN 5/4/B/l (minutes of the Trinity District Court, Bayly to Coke [5 Oct. 1772], and Coke to Bayly [8 Oct. 1772]). 144 PANL, GN 5/4/B/l (minutes of the Trinity District Court, Bayly to Coke, 9 Oct. 1772). 145 Coke explained that the original writ had been only a summons, not a judgment. He informed Bayly that it was not customary in England for a man who did not appear upon being summoned to court to be automatically liable for costs and damages. 146 PANL, GN 5/4/B/l (minutes of the Trinity District Court, Coke to Bayly, 12 Oct. 1772). 147 Commissioners of oyer and terminer to Governor Shuldham, 14 Oct. 1772, PANL, GN 2/1/A, vol. 5, 7-8. 148 Governor Shuldham to the commissioners of oyer and terminer, 15 Oct. 1772, PANL, GN 2/1/A, vol. 5, 8. 149 Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), f. 2 [testimony of Aaron Graham], in Lambert, ed., House of Commons Sessional Papers, 240. 150 Report upon the Judicature of Newfoundland (31 Dec. 1789), f. 7, in Lambert, ed., House of Commons Sessional Papers, 71. 151 PANL, GN/2/1/A, vol. 10,162. The governor in question was Captain John Campbell. 152 Report submitted to the Board of Trade by Admiral Milbanke and Mr. Graham, undated (c. Dec. 1789), PANL, CO 194/21,254-6. 153 Henry Nichols to Governor Campbell, 22 Apr. 1784, PANL, GN 2/1/A, vol. 10,19. Nichols further noted: 'I cannot find [that] the fishing admirals are authorized [by King William's Act] to order any person or persons from their lawful occupations to attend their court.' 154 Report of the Lords of the Committee of Privy Council for Trade, on the Subject of the Newfoundland Fishery (17 Mar. 1786), f. 11, in Lambert, ed., House of Commons Sessional Papers, doc. 4385. 155 Report submitted by Admiral Milbanke and Mr. Graham, undated [c. Dec. 1789], PANL, CO 194/21,254-6; Keith Matthews, 'Richard Hutchings,' DCB, 4: 443-4; Matthews, Lectures on the History of Newfoundland, 135-41. 156 10 & 11 Wm. Ill, c. 25, s. 15 (1699). 157 Pellew to Milbanke, 19 Apr. 1789, PRO, ADM 1/472, 305.

Notes to pages 173-5 351 158 Graham to Milbanke, 24 Apr. 1789; Thomas Gretton to Pellew, 6 Apr. 1789, PRO, ADM 1/472, 303-4, 307. 159 Milbanke to Philip Stephens, 24 July 1789, PRO, ADM 1/472, 312; Calvin Evans, 'Aaron Graham,' DCS, 5: 361. 160 For the legal powers contained in the governor's commission, see Appendix 4.2. 161 Notice of appointments, 17 Sept. 1789, PANL, GN 2/1/A, vol. 12,13. 162 Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), f. 4 [testimony of Aaron Graham], in Lambert, ed., House of Commons Sessional Papers, 242. 163 Ferryland District Court Records (minutes for 29 Sept. and 1 Oct. 1789), PANL, GN 5 / 4 / C / l ; Harbour Grace District Court Records (minutes for 19-22 Oct. 1789), PANL, GN 5/1/B/l. 164 Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), f. 11, in Lambert, ed., House of Commons Sessional Papers, 75. 165 The Irish convicts crisis is examined in detail in Jerry Bannister, 'Convict Transportation and the Colonial State in Newfoundland, 1789,' Acadiensis 27, 2 (Spring 1998): 95-123. 166 The correspondence between London and Dublin is contained in Historical Manuscripts Commission, 30th series, Manuscripts of J.B. Fortescue Preserved at Dropmore (London, 1892-1927), 1: 538-61 [Dropmore Papers]. I thank Simon Devereaux for generously sharing his research materials on Irish transportation. The impact of the landing of the Irish convicts on British penal policy is reappraised in Simon Devereaux, 'Irish Convict Transportation and the Reach of the State in Late Hanoverian Britain,' Journal of the Canadian Historical Association 8 (1997): 61-86. 167 Dropmore Papers, 1: 548 (Fitzgibbon to Grenville, 2 Dec. 1789). The tone of Fitzgibbon's remarks did not reflect Irish nationalism: one of the most powerful Protestant politicians in Dublin, he became an advocate of the Act of Union in 1800-1. See J.C. Beckett, The Making of Modern Ireland, 1603-1923, 2nd ed. (London: Faber and Faber, 1981), 232-6, 26871. 168 The Irish statute in question was 26 Geo. Ill, c. 24, ss. 64-70 (1786). 169 Dropmore Papers, vol. 1: 549 (Grenville to Fitzgibbon, 2 Dec. 1789). 170 For examples of how historians have misinterpreted Grenville's statement, see MacNutt, The Atlantic Provinces, 110; Ann Gorman Condon, '1783-1800: Loyalist Arrival, Acadian Return, Imperial Reform,' in P.A. Buckner and J.G. Reid, eds., The Atlantic Region to Confederation: A History (Fredericton: Acadiensis Press, 1994), 189. 171 Second Report from the House of Commons Committee to Enquire into the State

352 Notes to pages 175-7 of the Trade to Newfoundland (April 1793), f. 16 [testimony of William Knox], in Lambert, ed., House of Commons Sessional Papers, 188. 172 Matthews, Lectures on Newfoundland, 123. On government and policy generally, see Keith Matthews, 'History of the West of England - Newfoundland Fishery.' (D.Phil, thesis, Oxford University, 1968), 337-66. 173 See C.A. Bayly, Imperial Meridian: The British Empire and the World, 17801830 (London: Longman, 1989), 8-11, 93-5. On this point, see also Gerald Graham, Empire of the North Atlantic: The Maritime Struggle for North America 2nd ed. (Toronto: University of Toronto Press, 1958), 144. 174 Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), f. 172 [testimony of John Reeves], in Lambert, ed., House of Commons Sessional Papers, 410. 175 See PRO, BT 6/89,10-20, 78-87,167 (evidence given on law and government in Newfoundland, Jan. 1786). Appendix 1 listed the annual population of Newfoundland from 1718 to 1785. 176 Dropmore Papers, 1: 553 (Grenville to Fitzgibbon, 9 Dec. 1789). 177 Dropmore Papers, 1: 554 (Fitzgibbon to Grenville, 14 Dec. 1789). Emphasis in original. 178 Ibid. 179 Dropmore Papers, I: 560 (Hobart to Grenville, 22 Jan. 1790). 180 Bob Reece, "'Such a Banditti": Irish Convicts in Newfoundland, 1789. Part II,' Newfoundland Studies 13,2 (Fall 1997): 127-41 at 139-40. 181 British colonial administration had changed considerably since the mideighteenth century: Burke's Act of 1782 had abolished the Board of Trade; for the next four years the Home Office dealt with colonial affairs; in 1786 management of the colonies was transferred to a committee of the Privy Council for Trade and Plantations; in 1794 the secretary of war became nominally responsible for the colonies; and in 1801 the Colonial Office was established. For an overview, see Hugh Egerton, A Short History of British Colonial Policy (London: Methuen, 1928), esp. 551. 182 Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), ff. 7-37, in Lambert, ed., House of Commons Sessional Papers, 71-101. 183 'Letter from Admiral Milbanke' (20 Feb. 1790), in Lambert, ed., House of Commons Sessional Papers, 102-08. 184 Milbanke to Grenville, 6 July 1790, PANL, CO 194/38,190. 185 PRO, PC 2/135, 201-10 (23 July 1790); quotation at 205. 186 Evan Nepean to Milbanke, 24 Aug. 1790, PANL, CO 194/38,192-3. 187 Reeves, History of the Government of Newfoundland, 166-7. 188 Admiral Milbanke's Report upon the Judicature of Newfoundland (31 Dec. 1789), f. 18, in Lambert, ed., House of Commons Sessional Papers, doc. 4385.

Notes to pages 177-9

353

189 31 Geo. Ill, c. 29 (1791). See also Peter Neary, 'John Reeves/ DCB, 6: 636-7; Mark W. Bailey, 'John Reeves, Esq. Newfoundland's First Chief Justice: English Law and Politics in the Eighteenth Century/ Newfoundland Studies 14,1 (Spring 1998): 28-49. 190 PANL, CO 194/38, 317-18 (report on judicature of Newfoundland, 28 Nov. 1791). Reeves submitted this report to Henry Dundas, secretary of state, and sent a second to the Committee for Trade on 16 December 1791: see PRO, PC 2/136, 540. 191 PRO, BT 1/8, 83 (report on judicature of Newfoundland, 5 Dec. 1792). 192 See the list of civilian appointments at PANL, GN 2/1/A, vol. 12,210-12 (surrogates' commissions, 11 Oct. 1793). 193 32 Geo. Ill, c. 46 (1792). A summary of Reeves's 1791 report and a concomitant draft of the 1792 Judicature bill appear at PANL, CO 194/38, 328-53. 194 49 Geo. Ill, c. 27, s. 2 (1809). 195 Section 12 of the 1792 Judicature Act reads: 'And be it further enacted, That it shall not be lawful for any court in the island of Newfoundland, or islands aforesaid (except the supreme court and the surrogate courts appointed by virtue of this act) to hold plea of any suit or complaint of a civil nature, any law, custom, or usage, to the contrary notwithstanding.' The section made two exceptions - the court of vice admiralty, which could hear maritime cases, and the court of sessions (i.e., two sitting justices of peace), which could hear wage disputes - but made no mention of the fishing admirals or their jurisdiction over ship's rooms. 196 Third Report from the House of Commons Committee to Enquire into the State of the Trade to Newfoundland (June 1793), f. 148, in Lambert, ed., House of Commons Sessional Papers, 386. On the place of local custom in English jurisprudence, see Michael Lobban, The Common Law and English Jurisprudence, 1760-1850 (Cambridge: Cambridge University Press, 1991), 2-18. 197 On the supreme court, see Patrick O'Flaherty, 'Francis Forbes/ DCB, 7: 301-4; Bruce Kercher, 'Law Reports from a Non-Colony and a Penal Colony: The Australian Manuscript Decisions of Sir Francis Forbes as Chief Justice of Newfoundland/ Dalhousie Law Journal 19, 2 (Fall 1996): 417-24. 198 The Newfoundland Journal of Aaron Thomas, Able Seaman in HMS Boston, ed. Jean Murray (London: Longmans, 1968), 168-9. In an interesting passage Thomas noted: The Admiral, as I before stated, was a kind of Church Warden or Head Constable, and the Vice and Read Admiral might be consider'd in the light of Constables. When this trio of Admirals were assembled, and the complainants before them, the judges and plaintiff, defendants and evidence, being equal in rank, a free communication was likely to take place between them. If all were disposed to an amicable

354 Notes to pages 179-83

199 200 201 202

203 204 205

206 207 208 209 210

211 212 213

214 215

adjustment their friendship and good neighbourhood was soon restored again. The Rear Admiral has the appellation of Lady.' Thomas goes on to cite the oft-repeated observation that the admirals never kept proper journals, as required by King William's Act, in large part because they were overwhelming illiterate. PANL, MG 204, Duckworth Papers, box 1, 00260-78 (instructions to naval officers, undated [c. 1810]). Patrick O'Flaherty, 'William Waldegrave,' DCB, 6: 796-7. Quoted in Frederic Thompson, 'James Gambier,' DCB, 6: 271. Carson had emigrated to Newfoundland in 1808: over the next thirty years he remained at the heart of colonial politics and the edge of agitation for reform. See Patrick O'Flaherty, 'William Carson/ DCB, 7:1516. William Whitely, 'John Duckworth/ DCB, 7: 274-5. PANL, MG 204, Duckworth Papers, box 1, 00260-78 (Surrogates' instructions, undated [c. 1810]). On the view of sailors as part of a maritime lumpenproletariat cut off culturally from life ashore, see Judith Fingard, Jack in Port: Sailortowns of Eastern Canada (Toronto: University of Toronto Press, 1982); Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge: Cambridge University Press, 1987). Barry Gough, Gunboat Frontier: British Maritime Authority and Northwest Coast Indians, 1846-1890 (Vancouver: UBC Press, 1984). PANL, MG 204, Duckworth Papers, box 1, 291 (signals to be used by warships in Newfoundland, undated [c. 1807-9]). PANL, MG 204, Duckworth Papers, box 1, 00259. PANL, MG 204, Duckworth Papers, box 1, 937 (General memo from HMS Antelope undated [c. 1808]). PANL, MG 204, Duckworth Papers, box 1, 935-6 ('Ceremonies to be Observed on the Governor's Arrival at St. John's Newfoundland/ undated [c. 1808]). PANL, MG 204, Duckworth Papers, box 1,247-50 ('Port Orders/ undated [c. 1808]). PANL, MG 204, Duckworth Papers, box 1, 257 (undated memorandum). PANL, MG 204, Duckworth Papers, box 1, 255-6, 259 (orders regarding the royal marines, undated [c. 1808]). The private marines were not permitted to carry or wear sidearms when they went ashore on liberty. R. v. Cameron, 1775 Assizes. R. v. Reilly, 1789 Assizes.

Notes to pages 183-S 355 216 PANL, MG 204, Duckworth Papers, box 1, 258 (undated memo regarding firefighting). 217 PANL, MG 204, Duckworth Papers, box 1, 301^ (Winter Orders issued by Governor Halloway, 24 Oct. 1809). The material in this and the following paragraph is based on the orders and instructions given to Lieutenant Buchan by Governor Halloway. 218 PANL, MG 204, Duckworth Papers, box 1, 253-4 (Overwintering Orders, undated [c. 1809]). 219 PANL, MG 204, Duckworth Papers, box 1, 299-300 (Winter Orders issued to Richard Henry Muddle by Governor Halloway, 24 Oct. 1809). 220 PANL, MG 204, Duckworth Papers, box 1, 305 (Winter Orders issued to Lieutenant Thomas Lee by Governor Halloway, 24 October 1809). 221 PANL, MG 204, Duckworth Papers, box 1, 306-7 (Winter Orders issued to Commander Alexander Renny by Governor Halloway, 7 Mar. 1810). 222 Royal Gazette (St John's), 21 Jan. 1817 (report of a public meeting held 10 Jan. 1817). 223 Sean Cadigan, 'The Staple Model Reconsidered: The Case of Agricultural Policy in Northeast Newfoundland, 1785-1855,' Acadiensis 21, 2 (Spring 1992): 48-71 at 54. 224 Mercantile Journal (St John's), 14 Mar. 1817. Chapter 6: Using Mercy and Terror: The Patterns of Criminal Justice 1 On the link between the administration of justice and social relations, see Peter King, Crime, Justice, and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000), chap. 11; J.M. Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits to Terror (Oxford: Oxford University Press, 2001), chap. 1. 2 The chapter uses a database of all of the known cases before the court of oyer and terminer. The archival records of the assizes are discussed below, in Notes on Primary Sources. 3 The pardon rate for all offences was roughly 60 per cent in England and 55 per cent Nova Scotia. See J.M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 433-5; Jim Phillips, 'The Operation of the Royal Pardon in Nova Scotia, 1749-1815,' University of Toronto Law Journal 42 (1992): 401-49 at 423, 431, 436 and 441. 4 On patterns of punishment in colonial America, see, inter alia, Kathryn Preyer, 'Penal Measures in the American Colonies: An Overview/ American Journal of Legal History 26 (1982): 326-53; Linda Kealey, 'Patterns of Punishment: Massachusetts in the Eighteenth Century/ American Journal

356 Notes to pages 190-2

5 6

7 8 9 10

11

12

of Legal History 30 (1986): 177-82; Jeffrey Sawyer, '"Benefit of Clergy" in Maryland and Virginia/ American Journal of Legal History 34 (1990): 49-68; Peter Charles Hoffer, Law and People in Colonial America, 2nd ed. (Baltimore: Johns Hopkins University Press, 1998); Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996). See Appendix 4.1. On the structure of the Nova Scotian judicial system, see Phillips, 'Operation of the Royal Pardon in Nova Scotia/ 410-13. On the institutional framework of the royal pardon in England, see J.M. Beattie, 'The Royal Pardon and Criminal Procedure in Early Modern England/ Historical Papers (1987): 9-22; J.M. Beattie, 'The Cabinet and the Management of Death at Tyburn after the Revolution of 1688-1689,' in Lois Schwoerer, ed., The Revolution of 1688-1689: Changing Perspectives (Cambridge: Cambridge University Press, 1991), 218-33; Simon Devereaux, 'The Criminal Branch of the Home Office, 1782-1830/ in Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the Old World and the New: Essays in Honour of J.M. Beattie, 270-308. R. v. Fielding, 1751 Assizes. The complete archival references for each assize year are listed in Notes on Primary Sources. R. v. Kneeves, 1750 Assizes; R. v. Fielding, 1751 Assizes. Ryder to Holdernesse, 14 Mar. 1752, PRO, SP 36/118, 83.1 thank Professor John Beattie for this reference. Fielding's pardon was inserted in the general pardon issued for the convicts at Newgate, and then registered at St. John's in August 1752, sometime after which the governor ordered Fielding to be released. See PANL, GN 2/1/A, vol. 1, 311 (pardon of William Fielding, 24 Mar. 1752), 312 (Holdernesse to Drake, 28 Mar. 1752). R. v. McGuire et ai, 1754 Assizes. See also PANL, CO 194/13,209 (Bonfoy to Halifax, 13 Oct. 1754). Bonfoy enclosed the deposition of Nicholas Tobin, one of the conspirators in the botched burglary, who had turned King's evidence, upon whom the prosecution relied. In 1752 the British government had ordered that all regular correspondence should be sent only to the Board of Trade. Copies of the March 1752 order-incouncil and the accompanying instructions were registered locally (PANL, GN 2/1/A, vol. 1, 313-18). It is doubtful whether Bonfoy's October 1754 report was ever forwarded to the secretary of state: the original letter is cited as received on 18 Nov. 1754, but the date of reading at the Board of Trade is left blank. Bonfoy's full report (dated 21 Feb. 1755) was eventually read at the Board of Trade on 29 March 1755. See PANL, CO 194/13,153, 212.

Notes to pages 192-5 357 13 Dorrill to Board of Trade, 22 Jan. 1756, PANL, CO 194/13,194. 14 In May 1757 the British government issued a pardon and sent it to the new governor, Captain Richard Edwards. Finally, on 3 September 1757, Governor Edwards ordered the five men to be released from custody. See PANL, GN 2/1 / A, vol. 2, 308-9 (copy of the pardon of Laurence Lamley, Paul McDonald, John Moody, John Munhall, and Dennis Hawkins, 10 May 1757), 310 (Holdernesse to Edwards, 14 May 1757), 308 (Governor's orders, 3 Sept. 1757). 15 On the power of mercy, see Douglas Hay, 'Property, Authority and the Criminal Law,' in Hay et al., eds., Albion's Ratal Tree (New York: Pantheon, 1975), 40-9; David Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: Oxford University Press, 1990) 16-22; Carolyn Strange, 'Introduction/ in C. Strange, ed., Qualities of Mercy: Justice, Punishment, and Discretion (Vancouver: UBC Press, 1996), 6-18. 16 Bonfoy did not accede to the request since it was beyond his powers to deport soldiers convicted of no crime. See PANL, CO 194/13,162-3 (petition of commissioners of oyer and terminer, 19 Sept. 1754). 17 Bonfoy to William Thomas, 12 Oct. 1754, PANL, GN 2/1/A, vol. 2,183. 18 For the view of mercy as public theatre designed nakedly to reinforce political power, see V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford: Oxford University Press, 1994), 543-54. On the contentious question of cultural hegemony generally and the social face of deference toward legal authority, see E.P. Thompson, Customs in Common, 87-96. 19 PANL, GN 2 / 1 / A , vol. 2, 308-10. 20 R. v. Cox, R. v. Hallahan, and R. v. Dalton, 1776 Assizes. 21 PANL, GN 2 / 1 / A , vol. 6, 172-3. 22 Ibid. Montagu could have issued pardons on condition of a secondary punishment such as transportation. The decision not to do so may have arisen because the option of transportation to America had ended with the recent outbreak of the Revolutionary War. 23 Montagu to Germaine, 12 Nov. 1776, PANL, CO 194/33,11-12. Montagu had wasted little time: he wrote from HMS Romney as it lay at anchor at Spithead, before he had received a leave of absence to visit London. 24 Germaine to Montagu, 21 Jan. 1777, PANL, CO 194/33, 72. 25 PANL, CO 194/33, 79 (Montagu to Germaine, 5 Feb. 1777), 104 (Montagu to Germaine, 26 Feb. 1777), 112 (Germaine to Montagu, 21 Feb. 1777). 26 To justify his actions, Montagu informed London that Hallahan had been a hardened offender. See PANL, GN 2/1/A, vol. 6,194 (warrant for the execution of Lawrence Hallahan, 10 May 1777), 195-6 (free pardon given to

358 Notes to pages 195-7

27 28

29

30

31 32

33 34 35

36 37 38

John Cox, 10 May 1777); CO 194/33,133 (Montagu to Lord Germaine, 11 June 1777). R. v. Spry, 1784 Assizes. On the prosecution of infanticide, see R.W. Malcolmson, 'Infanticide in the Eighteenth Century/ in J.S. Cockburn, ed., Crime in England, 1550-1800 (London: Metheun, 1977), 187-209; Allyson N. May, '"She at first denied it": Infanticide Trials at the Old Bailey/ in Valerie Frith, ed., Women and History: Voices of Early Modern England (Toronto: Coach House Press, 1995), 1925. On patterns in Canada, see Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: The Osgoode Society & Women's Press, 1991), 112-39. The prosecution of infanticide as public nuisance is discussed in Jerry Bannister, 'Surgeons and Criminal Justice in Eighteenth-Century Newfoundland/ in Greg T. Smith, Allyson N. May, and Simon Devereau, eds., Criminal Justice in the Old World and the New: Essays in Honour ofJ.M. Beattie (Toronto: Centre of Criminology, 1998), 125-6. Unfortunately, the only surviving evidence is the governor's pardon, in which he comments on the case and the subsequent report of the commissioners of oyer and terminer. See GN 2/1 / A, vol. 10,112 (pardon of Sarah Spry, 23 Oct. 1784). 21 Jas. I, c. 27 (1624). Beattie, Crime and the Courts, 118-24. Beattie pursues his argument on cultural sentiment further in 'Violence and Society in Early-Modern England/ in A.N. Doob and Edward Greenspan, eds., Perspectives in Criminal Law: Essays in Honour of John Edwards (Aurora, ON: Canada Law Book, 1985), 3660. The widely accepted notion of an eighteenth-century transition in attitudes towards punishment is rooted in the seminal work of Norbert Elias, and has been critically reassessed by David Garland. See N. Elias, The Civilizing Process, Volume 1: The History of Manners (1939; reprinted, Oxford: Blackwell, 1994); Garland, Punishment and Modern Society, chap. 10. R. v. Bryan, 1790 Assizes. Milbanke to Henry Philips, 29 Oct. 1790, PANL, GN 2/1/A, vol. 12, 98-9. On the Admiralty Courts, see Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge: Cambridge University Press, 1987), 312-17. Milbanke to Grenville, 28 Nov. 1790, PANL, CO 194/38, 209. Dundas to Milbanke, 15 July 1791, PANL, CO 194/38, 234-5. Governor Milbanke took the unusual step of formally acknowledging Dundas's letter before sailing from Portsmouth. Milbanke had been a highly decisive administrator in nearly every other matter he faced as governor:

Notes to pages 197-9

39 40 41

42 43

44

45

46 47 48 49 50 51

359

the evident reticence he showed in handling the Bryan case may have been due to the fact that Newfoundland had not seen a public hanging for over a decade. See PANL, CO 194/38, 236 (Milbanke toDundas, 17 July 1791). Reeves to Milbanke, 20 Oct. 1791, PANL, CO 194/38, 274-5. Warrant for the execution of Cornelius Bryan, 26 Oct. 1791, PANL, GN/2/ I / A , vol. 12,99. On the role of discretion in this process, see Peter King, 'Decision-Makers and Decision-Making in the English Criminal Law, 1750-1800,' Historical Journal 27 (March 1984): 37-48; Phillips, 'Royal Pardon in Nova Scotia/ 40710, 439-19. Gatrell, The Hanging Tree, chaps. 18-20. E.P. Thompson, Whigs and Hunters: The Origins of the Black Act, 2nd ed. (London: Penguin, 1977), esp. 258-69. For an approach that effectively builds upon Thompson's model, see David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), esp. 189-97. N.A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy (Glasgow: William Collins, 1986), 218-29 (quotation at 229). On the structure of the navy's penal regime, see also Brian Lavery, 'Introduction,' in Brian Lavery ed., Shipboard Life and Organization, 1731-1815 (Aldershot, U.K: Navy Records Society, 1998), ix-xv; A.G. Jamieson, 'Tyranny of the Lash? Punishment in the Royal Navy during the American War, 1776-1783,' The Northern Mariner/Le Marin du nord 9, 1 (January 1999): 53-66. John Byrn, Crime and Punishment in the Royal Navy: Discipline on the Leeward Islands Station, 1784-1812 (Aldershot, UK: Scolar Press, 1989), chap. 3 & appendix D. Greg Dening argues that Byrn underestimates the frequency of whipping in the Royal Navy, though he does not question the rate of executions ordered by courts martial. See Dening, Mr. Bligh's Bad Language: Passion, Power and Theatre on the Bounty (Cambridge: Cambridge University Press, 1992), 113-16 and 377-96. The use of naval-style whipping in the district courts is discussed below, in chapter 7. On Durkheim, see Garland's reappraisal in Punishment and Modern Society, chaps. 2-3. See Rhys Isaac, The Transformation of Virginia, 1740-1790 (New York: Norton, 1982), esp. 90-4. R. v. Burket al, 1773 Assizes. Shuldham to Jonathan Phillips, 9 Oct. 1773, PANL, GN 2/1/A, vol. 5,185-6 On the spectacle of the scaffold, see Michel Foucault, Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan (New York: Random House,

360 Notes to pages 199-200

52

53

54

55

56

57

1977), 32-69; Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression, from a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984). As Jim Phillips notes, John Beattie's work on the royal pardon has alternated somewhat between affording primacy to the nature of the offence and the character of the offender. Evidence from the Newfoundland assizes suggests that the two factors were, in fact, symbiotic and cannot easily be separated. See Beattie, Crime and the Courts, 430-49, and 'Cabinet and the Management of Death/ 230-1; Phillips, 'Royal Pardon in Nova Scotia/ 408-9. See, inter alia, John H. Langbein, 'Albion's Fatal Flaws/ Past and Present 98 (1983): 96-120; Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Penguin, 1991); John H. Langbein, 'Culprits and Victims/ Times Literary Supplement (11 Oct. 1991), 27. For a somewhat balanced perspective, see Joanna Innes and John Styles, 'The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England/ in Adrian Wilson, ed., Rethinking Social History: English Society, 1570-1920 and its Interpretation (New York: St Martin's Press, 1993), 20165. This does not mean that women were not prosecuted vigorously for property offences, particularly simple larceny. Beattie points out that from 1690 to 1720 women made up about half of the total defendants at the Old Bailey in London. The point is that they were typically convicted of offences that involved no serious violence and little direct confrontation with a victim. See Beattie, Crime and the Courts, 436-9; Beattie, 'The Criminality of Women in Eighteenth-Century England/ Journal of Social History 8 (1975): 80-116; Beattie, "'Hard-pressed to make ends meet": Women and Crime in Augustan London/ in Frith, ed., Women and History, 103-7. Jim Phillips has found a limited gender gap in convictions for capital offences (19 per cent of women and 33 per cent of men), and rough parity for noncapital offences (49 per cent and 43 per cent respectively). See Jim Phillips, 'Women, Crime, and Criminal Justice in Early Halifax, 1750-1800,' in Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, Volume Five: Crime and Criminal Justice (Toronto: The Osgoode Society, 1994), 174-96. See R. v. Penny and Penny, 1751 Assizes; R. v. Coffin, 1752 Assizes; R. v. McGuire, et al, 1754 Assizes; R. v. Power and Shea, 1759 Assizes; R. v. Power and Fling, 1772 Assizes; R. v. Burket al., 1773 Assizes; R. v. Shea, 1782 Assizes; and R. v. Spry, 1784 Assizes. Phillips, 'Women, Crime, and Criminal Justice/ 182; Smith, 'The Decline of Physical Punishment in London/ in Strange, ed., Qualities of Mercy, 37-41.

Notes to pages 200-3 361 58 Lester Diary Ms., undated entry for March 1762. 59 On the regulation of women, see Sean Cadigan, 'Whipping Them into Shape: State Refinement of Patriarchy among Conception Bay Fishing Families, 1787-1825' in Carmelita McGrath, Barbara Neis, and Marilyn Porter, eds., Their Lives and Times: Women in Newfoundland and Labrador (St John's: Killick Press, 1995), 48-59; Willeen Keough, 'The Riddle of Peggy Mountain: Regulation of Irish Women's Sexuality on the Southern Avalon, 17501860,' Acadiensis 31, 2 (Spring 2002): 38-70. 60 PANL, GN 2 / 1 / A , vol. 2, 368 (1757), vol. 5, 4 (1771). 61 Phillips, 'Women, Crime, and Criminal Justice,' 184. 62 C. Grant Head, Eighteenth Century Newfoundland A Geographer's Perspective (Toronto: McClelland and Stewart, 1976), 145. 63 On women in the fishery, see Marilyn Porter, '"She was Skipper of the Shore-Crew": Notes on the History of the Sexual Division of Labour in Newfoundland/ in McGrath, et al., eds., Their Lives and Times, 33-47; Dona Lee Davis, '"Shore Skippers and Grass Widows": Active and Passive Women's Roles in a Newfoundland Fishery/ in Jane Nadel-Klein and Dona Lee Davis, eds., To Work and to Weep: Women in Fishing Economies (St John's: Institute of Social and Economic Research, 1988), pp. 211-30; Sean Cadigan, Hope and Deception in Conception Bay: Merchant-Settler Relations in Newfoundland, 1785-1855 (Toronto: University of Toronto Press, 1995), chap. 4; W. Gordon Handcock, Soe longe as there comes no women: Origins of English Settlement in Newfoundland, (St John's: Breakwater Books, 1989), 31-32. 64 PANL, G N / 2 / 1 / A , vol. 3, 230 (1764), vol. 7, 35 (1777). 65 PANL, GN 2 / 1 / A , vol. 5, 74 (1773), vol. 7, 123 (1777). 66 PANL, G N / 2 / 1 /A, vol. 9, 27 (1780). 67 On the model of separate spheres, see Janet Guildford and Suzanne Morton, 'Introduction/ in J. Guildford and S. Morton, eds., Separate Spheres: Women's Worlds in the 19th-century Maritimes (Fredericton: Acadiensis Press, 1994), 9-21. 68 Patrick Morris, Remarks on the State of Society, Religion, Morals, and Education at Newfoundland (London: A. Hancock, 1827), 13-14. 69 R. v. Power and Fling, 1772 Assizes. 70 Report of Rev. James Balfour, 12 Oct. 1772, in United Society for the Propagation of the Gospel Calendar of Letters, 150. 71 PANL, GN 2/1 / A, vol. 5,15-22 (quotation at 18). 72 Beattie, Crime and the Courts, 430-1; James Oldham, 'On Pleading the Belly: A History of the Jury of Matrons/ Criminal Justice History 6 (1985): 1-64. 73 Report of Elizabeth Fleming, Susanah Eales, and Joanna Cheek, 17 Oct. 1772, PANL, CO 194/30,135.

362 Notes to pages 203-7 74 Seattle, Crime and the Courts, 430-1. 75 Shuldham to commissioners of oyer and terminer, 24 Oct. 1772, PANL, GN 2/1/A, vol. 5,147. 76 PANL, CO 194/30,135. 77 Governor Shuldham sent Power's dossier to the secretary of state, who arranged for a free pardon to be issued through the recorder of London, and she was finally released from prison in June 1773. See PANL, CO 194/ 31,19 (Dartmouth to Shuldham, 10 Apr. 1773), 23 (Shuldham to Dartmouth); GN 2/1/A, vol. 5,155 (copy of royal pardon of Mary Power, 3 Apr. 1773), 156 (Shuldham to the high sheriff, 23 June 1773). 78 Commissioners of oyer and terminer to Governor Campbell, 8 Oct. 1785, PANL, GN 2/1/A, vol. 10,187. 79 R. v. Delaney, 1786 Assizes. This case is discussed further in Bannister, 'Surgeons and Criminal Justice,' 118-21. 80 On deathbed declarations at the Newfoundland assizes, see Bannister, 'Surgeons and Criminal Justice/ 117-32; on the use of such evidence at the Old Bailey in London, see Thomas Forbes, Surgeons at the Bailey: English Forensic Medicine to 1878 (New Haven: Yale University Press, 1985), 24-5. 81 R. v. Delaney, 1786 Assizes. 82 The independence exhibited by the jury in the Delaney case was generally rare in English courts. See T.A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago: University of Chicago Press, 1985), 283-8. 83 Commissioners of oyer and terminer to Governor Elliot, 10 Oct. 1786, PANL, CO 194/36, 242. 84 Elliot to Lord Sydney, 24 Nov. 1786, PANL, CO 194/36,215. The reprieve of Delaney, dated 13 Oct. 1786, appears at PANL, GN 2/1/A, vol. 11, 97. 85 PANL, GN 2/1/A, vol. 11,174 (pardon of John Delaney, 13 Dec. 1786), 1756 (Elliot to the high sheriff, 16 July 1787), 183 (order to render account to John Delaney). 86 On violence against women, see Phillips, 'Women, Crime, and Criminal Justice,' 188-96; Backhouse, Petticoats and Prejudice, 168-86. 87 The three convictions for rape were: R. v. Fielding, 1751 Assizes; R. v. Stackebald, 1762 Assizes; and R. v. Hogan, 1774 Assizes. Fielding was a private in the local army garrison, while Stackebald and Hogan were both Irish fishing servants. On the importance of men's class/ethnicity in the patterns of prosecution for rape, see Carolyn Strange, 'Patriarchy Modified: The Criminal Prosecution of Rape in York County, Ontario, 1880-1930,' in Phillips et al., eds., Crime and Criminal Justice, esp. 238-^10. 88 R. v. Delaney, 1786 Assizes. 89 Ibid.

Notes to pages 208-11 363 90 The lack of substantive defences mounted by servants accused of felonies echoed the pattern in Georgian England. See Beattie, Crime and the Courts, 350. 91 15 Geo. Ill, c. 31, ss. 12-17 (1775). 92 On class dynamics within the criminal trial in England and Nova Scotia, see Douglas Hay, The Class Composition of the Palladium of Liberty: Trial jurors in the Eighteenth Century/ in J.S. Cockburn and T.A. Green, eds., Twelve Men Good and True: The Criminal Trial Jury in England, 1200-1800 (Princeton: Princeton University Press, 1988), 305-57; Hay, 'Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850,' in D. Hay and F. Snyder, eds., Policing and Prosecution in Britain, 1750-1850 (Oxford: Clarendon Press, 1989); and Jim Phillips, 'Halifax Juries in the Eighteenth Century,' in Smith, May, and Devereaux, eds., Criminal Justice in the Old World and the New, 174-82. 93 See Marcus Rediker's remarks in, 'Roundtable: Reviews of Marcus Rediker, Between the Devil and the Deep Blue Sea, with a Response by Marcus Rediker,' International Journal of Maritime History 1, 2 (Dec. 1989): 311-57; Bannister, 'Issue of Class in the Writing of Newfoundland History/ 134-44. 94 'Agent' denotes those who worked as clerks, middlemen, and traders in conjunction with a merchant firm. Many of these men were, in fact, junior merchants working to accumulate enough capital to establish their own operation. Most of them were literate, and they usually identified themselves with the Protestant mercantile elite as much as possible. 'Planter' refers to those who owned some capital, or had access to credit, and operated their own fishing ships. They usually employed several indentured servants. This group includes 'by-boatkeepers/ a term used to describe those who returned to England each autumn, as opposed to 'planters/ who planned to settle permanently in Newfoundland. In practice, there was little difference between these two sub-groupings, both of which occupied a rung well above servants on the island's social ladder. 'Esquire' is the term used in the indictment, and it conferred the status of gentleman. No additional information could be found on the two men who were referred to in this way. See G.M. Story et al., eds., Dictionary of Newfoundland English, 2nd ed. (Toronto: University of Toronto Press, 1990), 6, 53, 77-8, 382, and, generally, Cadigan, Hope and Deception, chap. 6. 95 R. v. Malloney, 1779 Assizes. 96 On the social stratification in Georgian society, and the genteel world to which West Country magnates such as Benjamin Lester belonged, see Roy Porter, English Society in the Eighteenth Century, 2nd ed. (London: Penguin, 1990), chaps. 2 and 6. 97 R. v. Disney, 1789 Assizes.

364 Notes to pages 211-13 98 R. v. Cameron, 1775 Assizes. 99 Commissioners of oyer and terminer to Governor Duff, 17 Oct.,1775, PANL, CO 194/32,108. 100 PANL, CO 194/32,106 Puff to Lord George Germaine, 21 Nov. 1775), 146-7 (Germaine to Duff, 27 Nov. 1775). 101 For an analysis of how criteria such as youth factored into the pardon process, see Peter King, Crime, Justice, and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000), chap. 9. 102 Commissioners of oyer and terminer to Governor Campbell, 21 Oct. 1784, PANL, GN 2/1/A, vol. 10,119. Emphasis added. 103 Pardon of Thomas Adams, 23 Oct. 1784, PANL, GN 2/1/A, vol. 10,121. 104 PANL, GN 2/1/A, vol. 10,185 (commissioners of oyer and terminer to Governor Campbell, 8 Oct. 1785), 186 (pardon of James Cunningham, 11 Oct. 1785). The treatment of offenders thought to be insane is discussed in Bannister, 'Surgeons and Criminal Justice,' 129-30. 105 The execution warrants appear at PANL, GN 2/1 / A, vol. 2,181-2 (1754); vol. 3,164 (1762); vol. 6,194 (1777); vol. 8,149 (1780); vol. 10, 97-S (1786); vol. 12, 99 (1791). On capital punishment in Hanoverian England, see, inter alia, Hay, 'Property, Authority and the Criminal Law/ 32-40; Beattie, Crime and the Courts, 451-6, 530-8; Steven Wilf, 'Imagining Justice: Aesthetics and Public Executions in Late Eighteenth-Century England,' Yale Journal of Law and the Humanities 5,1 (Winter 1993): 51-78; J.S. Cockburn, 'Punishment and Brutalization in the English Enlightenment,' Law and History Review 12,1 (Spring 1994): 155-79. 106 In only one instance did the execution warrant specify the location of the execution: those sentenced to death for the murder of William Keen in 1754 were executed on the victim's wharf. The only extant eye-witness account of a hanging is contained in the diary kept by a visiting sailor in 1794. See The Newfoundland Journal of Aaron Thomas, Able Seaman in H.M.S. Boston, ed. Jean Murray (London: Longmans, 1968), 179. 107 On the role of government and politics in this process, see Beattie, 'Cabinet and the Management of Death,' 230-1; Carolyn Strange, 'The Lottery of Death: Capital Punishment in Canada, 1867-1976,' Manitoba Law Journal 23, 3 (1996): 594-619; David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), esp. 51-60. 108 Warrant for the execution of McGuire and Hallahan, 10 Oct. 1754, PANL, GN 2/1/A, vol. 2,181-2. 109 Soldiers were likely present at every hanging. Specific orders for a party from the local garrison to muster at the place of execution appear at PANL, GN 2/1/A, vol. 6, 200 (1762); vol. 12,124 (1791).

Notes to pages 213-15 365 110 Journal of Aaron Thomas, 179-80. Spelling has been modernized. 111 Ibid. 112 See Cyril J. Byrne, ed., Gentlemen-Bishops and faction fighters: The Letters of Bishops ODonel, Lambert, Scallan and other Irish Missionaries (St John's: Jesperson Press, 1984), 171. 113 On the battles that periodically erupted around the gallows, see Peter Linebaugh, 'The Tyburn Riot Against the Surgeons,' in Hay et al., eds., Albion s Fatal Tree, 65-117. 114 T.W. Laquer, 'Crowds, Carnivals and the English State in English Executions, 1604—1868,' in A.L. Beier et al., eds., The First Modern Society: Essays in Honour of Lawrence Stone (Cambridge: Cambridge University Press, 1989), 305-99. For a critique of Laquer's argument that executions were ritualized carnivals, see Gatrell, The Hanging Tree, 90-105. 115 See Gatrell, The Hanging Tree, chaps. 1-3. For a critique of Gatrell's work, see Simon Devereaux, 'Peel, Pardon and Punishment: The Recorder's Report Revisited/ in Simon Devereaux and Paul Griffiths, eds., Punishing the English: Essays in Penal Politics and Culture (forthcoming 2003). 116 On the importance of controlling bodies to state-sanctioned criminal justice, see Foucault, Discipline and Punish, esp. 22-31. 117 The orders to hang the corpses in chains are recorded at PANL, GN 2/1/ A, vol. 2, 181-82; vol. 12, 99. 118 Beattie, Crime and the Courts, 520-38; Randall McGowen, 'The Body and Punishment in Eighteenth-century England,' Journal of Modern History 59, 4 (1987): 651-79; Joanna Innes, The "Bloody Code" in Context: Eighteenth Century Criminal Legislation Reconsidered' (typescript ms., Centre of Criminology, 1994). 119 PANL, CO 194/ 13, 171. Bonfoy was likely referring to the Murder Act of 1752 (25 Geo. II, c. 37), which authorized the corpses of convicted murderers to be hanged in chains and denied a Christian burial. See Beattie, Crime and the Courts, 529-30. 120 PANL, GN 271/A, vol. 2,183. 121 On the punishment of Irish offenders in England, see Linebaugh, London Hanged, chap. 9. 122 Nine men and one woman were identified as Irish in their indictments: Edmund McGuire, Matthew Halluran, Robert Power, Eleanor Power (1754 Assizes); John Stackebald (1762 Assizes); Laurence Hallahan (1777 Assizes); Michael Darrigan (1780 Assizes); William Martin (1786 Assizes); Cornelius Bryan (1790 Assizes); and Patrick Murphy (1791 Assizes). Patrick Noddy, the only Englishman to be hanged, was executed in 1791 for forgery. According to Chief Justice Reeves, Noddy had been previously convicted at Exeter and was considered to be a hard-

366 Notes to pages 215-17 ened offender. See PANL, CO 194/38,276-7 (Reeves to Milbanke, 20 Oct. 1791). 123 J. Mannion, 'Introduction/ in Mannion, ed., The Peopling of Newfoundland Essays in Historical Geography (St John's: Institute of Social and Economic Research, 1977) 8; Cecil Houston and William J. Smyth, Irish Emigration and Canadian Settlement: Patterns, Links, and Letters (Toronto & Belfast: University of Toronto Press and Ulster Historical Foundation, 1990), 7-8, 6271; John Mannion,'"... Notoriously disaffected to the Government..." British allegation of Irish disloyalty in eighteenth-century Newfoundland/ Newfoundland Studies 16,1 (2000): 1-29. 124 John Mannion, 'Old World Antecedents, New World Adaptations: Inistioge (Co. Kilkenny) Immigrants in Newfoundland/ Newfoundland Studies 5, 2 (Fall 1989): 103-76; Cyril Byrne, 'Introduction/ in Byrne, ed., Gentlemen-Bishops and Faction Fighters, 9-22; John Mannion, 'The Maritime Trade of Waterford in the Eighteenth Century/ in W. Smyth and Kevin Whelan, eds., Common Ground; Essays on the Historical Geography of Ireland (Cork: Cork University Press, 1988), 208-33. Translators were needed at the 1751, 1786, and 1789 assizes. 125 PRO, CO 194/12,186. 126 On the Whiteboys in Newfoundland, see the report from Reverend Edward Langman, dated 8 November 1766, in United Society for the Propagation of the Gospel, Calendar of Letters, 46; on their origins in Ireland, see James Donnelly, 'The Whiteboy Movement, 1761-5,' Irish Historical Studies 21, 81 (March 1978): 20-54; and on use of the term in local nomenclature, see Story et al., eds., Dictionary of Newfoundland English, 610. 127 Keith Matthews, 'William Keen/ DCB, 3: 323-4. 128 R. v. McGuire, et al, 1754 Assizes. 129 Griffith Williams, An Account of the Island of Newfoundland, with the Nature of its Trade, and the Method of Carrying on the Fishery, with Reasons for the Great Decrease of that most Valuable Branch of Trade (London: T. Cole, 1765), 9. Emphasis in original. Williams was an officer in the Royal Artillery stationed at St John's. 130 On the Penal Laws in Great Britain and Ireland and their application in Newfoundland, see Raymond Lahey, 'Catholicism and Colonial Policy in Newfoundland, 1779-1845,' in Terrence Murphy and Gerald Stortz, eds., Creed and Culture: The Place of English-Speaking Catholics in Canadian Society, 1750-1930 (Montreal: McGill-Queen's: University Press, 1993), 49-53; Raymond Lahey, James Louis O'Donel in Newfoundland, 1784-1807 (St John's: Newfoundland Historical Society, 1984), 3-7; and Hans Rollmann, 'Religious Enfranchisement and Roman Catholics in Eighteenth-Century

Notes to pages 217-19 367

131 132 133

134

135 136

137 138

139 140 141 142 143

144

145 146 147

Newfoundland/ in T. Murphy and C. Byrne, eds., Religion and Identity: The Experience of Irish and Scottish Catholics in Atlantic Canada (St John's: Jesperson Press, 1987), 34-52. PANL, GN 2/1 /A, vol. 2, 202, 216, 251-62, 264, and 277. PANL, GN 2 / 1 / A , vol. 2,253. For a printed account of these proceedings, which took place during the sitting of a surrogate court in September 1755, see Prowse, History of Newfoundland, 294. See Byrne, 'Introduction,' in Byrne, ed., Gentlemen-Bishops and Faction Fighters, 6-9; Lahey, James Louis O'Donel, 5-6; R.G. Lounsbury, The British Fishery at Newfoundland, 1634-1763 (New Haven: Yale University Press, 1934), 302-3. W.J. Eccles, France in America, 2nd ed. (Markham, ON: Fitzhenry & Whiteside, 1990), 188-200. Gerald S. Graham, Empire of the North Atlantic: The Maritime Struggle for the Atlantic, 2nd ed. (Toronto: University of Toronto Press, 1958), 190-2; William Whiteley, Thomas Graves,' DCB, 4: 380-2. Williams, Account of the Island of Newfoundland, 9-10. A.M. Lysaght, ed., Joseph Banks in Newfoundland and Labrador, 1766: His Diary, Manuscripts and Collections (Berkeley: University of California Press, 1971), 151. R. v. Stackebald, 1762 Assizes. Warrant for the execution of John Stackebald,PANL, GN 2/1/A, vol. 3, 164, emphasis added. William Whiteley, Thomas Graves,' DCB, 4: 380-2. The 1784 grant of liberty of conscience appears at PANL, GN 2/1/A, vol. 10, 138. The same year as Governor Campbell issued the grant of religious toleration, he ordered the Placentia magistrates to deport a Roman Catholic priest considered to be 'of a very violent spirit.' See PANL, GN 2/1/A, vol. 10, 197. BL, Add MS 15493, Dr Gardner, 'Some facts collected, and observations made on the fisheries and government of Newfoundland' (unpublished treatise, 1784), f. 12. Rollmann, 'Religious Enfranchisement and Roman Catholics,' 34-52; Lahey, 'Catholicism and Colonial Policy/ 49-55. Frederic Thompson, 'Mark Milbanke,' DCB, 5: 595-6; Lahey, James Louis O'Donel, 15-30. Warrant for the execution of Garrett Farrell and Richard Power, 30 Oct. 1794, PANL, GN 2 / 1 / A , vol. 12, 293-6, and 299.

368 Notes to pages 220-5 148 PANL, GN 2/1/A, vol. 12,297. 149 PANL, GN 2/1/A, vol. 12,369. 150 Cyril Byrne, 'Ireland and Newfoundland: The United Irish Rising of 1798 and the Fencible's Mutiny in St. John's, 1800' (unpublished paper presented to the Newfoundland Historical Society, 1977); John Mannion, '"... Notoriously disaffected to the Government.../" 1-29. On the context in Ireland, see R.F. Foster, 'Ascendancy and Union/ in R.F. Foster, ed., The Oxford History of Ireland (Oxford: Oxford University Press, 1992), 134-73; Jim Smyth, The Men of No Property: Irish Radicals and Popular Politics in the Late Eighteenth Century (London: Macmillan, 1992), 37-45. 151 Terry Carlson, 'Pragmatism and Correctional History: Perspectives on Prison Origins and Penal Practices in Pre-Confederation Newfoundland' (PhD thesis, University of Manchester, 2001), chaps. 7-8. 152 Gertrude Gunn, The Political History of Newfoundland, 1832-1864 (Toronto: University of Toronto Press, 1966), chaps. 1-2; John Greene, Between Damnation and Starvation: Priests and Merchants in Newfoundland Politics, 17451855 (Montreal: McGill-Queen's University Press, 1999), chaps. 3-4; John Edward FitzGerald, 'Michael Anthony Fleming and Ultramontanism in Irish-Newfoundland Catholicism, 1829-1850,' COM Historical Studies 64 (1998): 27-44. 153 Linda Little, 'Collective Violence in Outport Newfoundland: A Case Study from the 1830s/ Labour/Le Travail 26 (Fall 1990): 7-35. 154 Quoted in R.G. Moyles, 'Complaints is many and various, but the odd Divil likes it': Nineteenth Century Views of Newfoundland (Toronto: Peter Martin Associates, 1975), 84. 155 John Mannion, 'Transatlantic Disaffection: Wexford and Newfoundland, 1798-1800,' Journal of the Wexford Historical Society 17 (1998-9): 30-60 at 48. 156 Ibid., 47-8. Chapter 7: Enforcing the Social Order: Punishment in a Fishing Society 1 By contrast, 41 per cent of the total number of offenders sentenced to death in England, and 44 per cent of those condemned in Nova Scotia, were executed. Of those convicted of property offences, the executions rates were 38 per cent and 27 per cent respectively. See Jim Phillips, 'The Operation of the Royal Pardon in Nova Scotia, 1749-1815' University of Toronto Law Journal 42 (1992): 401-49. 423 and 431; J.M. Beattie, Crime and the Courts in England (Princeton: Princeton University Press, 1986), 433-5. 2 The court fees are listed at PANL, GN 2/1/A, vol. 9, 204. For orders to raise local levies in order to pay for trials at the assizes, see GN 2/1/A, vol. 5, 207, vol. 6, 67-8, 71-5, 84.

Notes to pages 225-30 369 3 BL, Add MS 15493, Dr Gardner, 'Some Facts Collected, and Observations Made on the Fisheries and Government of Newfoundland' (unpublished treatise), f. 26. 4 PANL, GN 2/1 / A, vol. 6, 44 Puff to Trinity justices, 12 Oct. 1775). 5 R. v. Swiney, 1752 Assizes. 6 R. v. Gilmore, et al, 1758 Assizes. 7 R. v. Crow, et al., 1780 Assizes. 8 This incident is discussed at length in Jerry Bannister, 'Convict Transportation and the Colonial State,' Acadiensis 27, 2 (Spring 1998): 95-123. 9 Justices to Governor Elliot, 13 Oct. 1786, PANL, GN 2/1/A, vol. 11,1002. 10 PRO, CO 194/33, 75-6. 11 PANL, CO 194/36,195-202. 12 R. v. Malloney, 1779 Assizes. 13 PANL, GN 2/1/A, vol. 9, 298-301. 14 R. v. Kneeves, 1750 Assizes. 15 See R. v. Hoare, 1751 Assizes; R. v. Knowlan, 1776 Assizes. 16 R. v. Shortill, 1774 Assizes. 17 According to Deuteronomy: 'And it shall be, if the wicked man be worthy to be beaten, that the judge shall cause him to lie down, and to be beaten before his face, according to his fault, by a certain number. Forty stripes he may give him, and not exceed: lest if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee' (Deut. 25: 2-3). 18 R. v. Knowlan, 1776 Assizes. 19 As we saw in chapter 6, under 30 per cent of those condemned at the Newfoundland assizes were hanged; by contrast, over 40 per cent of offenders sentenced to death in England and Nova Scotia were executed. See Phillips, 'Operation of the Royal Pardon in Nova Scotia,' 423 and 431; Beattie, Crime and the Courts, 433-5. 20 Kathryn Preyer, 'Penal Measures in the American Colonies: An Overview,' American Journal of Legal History 26 (1982): 327-53. 21 Rys Isaac, Transformation of Virginia, 1740-1790 (New York: Norton, 1982), 92. 22 Peter Oliver, 'Terror to Evil-Doers': Prisons and Punishments in NineteenthCentury Ontario (Toronto: The Osgoode Society, 1998), 16-29. 23 David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), 51. On whipping in England, see Beattie, Crime and the Courts, 461^1 and 485-7. 24 Brian Lavery, Nelson's Navy: The Ships, Men and Organisation, 1793-1815 (London: Naval Institute Press, 1989), 216-20.

370 Notes to pages 230-5 25 Neal, Rule of Law in a Penal Colony, 27-39. 26 Greg Dening, Mr. Bligh's Bad Language: Passion, Power and Theatre on the Bounty (Cambridge: Cambridge University Press, 1992), 62-5 and 113-32. 27 PRO, CO 194/13,146. 28 PANL, GN 2/1/A, vol. 5,115. 29 Commissioners of oyer and terminer to Governor Duff, 7 Oct. 1775, PANL, GN 2/1/A, vol. 6,40. 30 David J. Starkey, 'The West Country - Newfoundland Fishery and the Manning of the Royal Navy/ in Robert Higham, ed., Security and Defence in SouthWest England Before 1800 (Exeter: University of Exeter Press, 1987), 93-101. 31 6 Anne, c. 37, s. 9 (1708). This act was repealed by Palliser's Act (15 Geo. II, c. 31, s. 19). 32 Jesse Lemisch, Jack Tar vs. John Bull: The Role of New York's Seamen in Precipitating the Revolution (New York: Garland, 1997), chap. 2. 33 See N. A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy (Glasgow: William Collins, 1986), 164-82; Nicholas Rogers, 'Liberty Road: Opposition to Impressment in Britain during the American War of Independence/ in Howell and Twomey eds., Jack Tar in History, 53-75. 34 Dudley Pope, Life in Nelson's Navy (Annapolis: Naval Institute Press, 1987), 120. 35 Proclamation of Governor Graves, 30 Aug. 1762, PANL, GN 2/1/A, vol. 3, 142. 36 D.W. Prowse, A History of Newfoundland from the English, Colonia, and Foreign Records (1895; reprinted, Belleville, ON: Mika Studio, 1972), 654; Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), 111. 37 The Newfoundland Journal of Aaron Thomas, Able Seaman in H.M.S. Boston, ed. Jean Murray (London: Longmans, 1968), 73-4. 38 Petition to Governor James Wallace, 13 Oct. 1795, PANL, GN 2/1/A, vol. 12, 356-7. The governor's secretary informed the merchants that their petition was based on unsubstantiated allegations. 39 R. v. Bolan, Harbour Grace District, 5 Oct. 1789, PANL, GN 5/4/B/l. 40 Ryan v. Wheaton et al, Ferryland District, 21 Mar. 1795, PRL, 340.9/N45 VT Rare Books. 41 See the minutes for 17-30 September in the Ferryland district records, PANL,GN5/4/C/l. 42 Ibid. 43 PANL, GN 2/1/A, vol. 11, 388-90 (Ferryland petition), 437-41 (Governor Elliot's orders). 44 Christopher English, 'Collective Violence in Ferryland District, Newfoundland, 1788,' Dalhousie Law Journal 21, 2 (Fall 1998): 475-89.

Notes to pages 235-41 371 45 Lahey, James Louis O'Donel, 5-15. 46 O'Donel to Elliot, undated 1788, in Cyril Byrne, ed., Gentlemen-Bishops and Faction Fighters: The Letters of Bishops O'Donel, Lambert, Scallan and Other Irish Missionaries (St John's: Jesperson Press, 1984), 70-71. 47 O'Donel to Father Troy, 16 Nov. 1788, in Byrne, ed., Letters of Irish Missionaries, 74. 48 49 Prince William Henry to King George III, 21 Sept. 1786, in A. Aspinall, ed., The Later Correspondence of George III (Cambridge: Cambridge University Press, 1962), 1: 249. This case was not included in the database of punishments used for this chapter. 50 Ibid. 51 Ibid. 52 On this point see Keith Matthews, Lectures on the History of Newfoundland 1500-1830 (St John's: Breakwater Books, 1988), 149-60. 53 C. Grant Head, Eighteenth Century Newfoundland: A Geographer's Perspective (Toronto: McClelland and Stewart, 1976), 82-100; W. Gordon Handcock, Soe long as there comes noe women: Origins of English Settlement in Newfoundland (St John's: Breakwater Books, 1989), 91-120. 54 Governor's decree, 31 Oct. 1764, PANL, GN 2/1/A, vol. 3, 272. 55 PANL, GN 2/1 / A, vol. 4, 285 (re-issuing of Palliser's decree, 1770), vol. 6, 101-2 (re-issuing of Palliser's decree, 1775). 56 ISGeo. Ill, c. 31, s. 13(1775). 57 United Society for the Propagation of the Gospel, Calender of Letters, 152. 58 Memorandum of James Goss, 20 July 1770, PANL, GN 2/1 /A, vol. 4, 245. 59 See E.P. Thompson, The Crime of Anonymity,' in Douglas Hay et al., eds. Albion s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975). 60 Parliamentary Debates, 2nd ser., vol. 5, (28 May 1821), 1016. See also Journals of the House of Commons, vol. 76 (28 May 1821), 388. 61 Anon., A Report of Certain Proceedings of the Inhabitants of the Town of Saint John, in the Island of Newfoundland, with the view to obtain a REFORM of the LAWS, more particularly in the mode of their administration, and an INDEPENDENT LEGISLATURE (St John's: Lewis Ryan, 1821), 37. 62 On the regulations governing the use of whipping on warships, see Rodger, Wooden Wor/rf, 218-21. 63 F.D. Cartwright, ed., The Life and Correspondence of Major Cartwright (1826; reprinted, New York: Augustus Kelly, 1969), 31. 64 PANL, CO 194/38,305. 65 BL Add MS 15493, Dr Gardner, 'Some Facts Collected, and Observations

372 Notes to pages 242-5

66 67 68 69 70 71

72 73

74

75 76

77 78 79 80

Made on the Fisheries, and Government of Newfoundland/ f. 29. For an example of the use of this source by whig historians, see Prowse, History of Newfoundland, 356-7. Lester Diary Ms., 30 July 1767. Spelling and punctuation have been modernized. PANL, GN5/4/C/1 (Ferryland District minutes for 3 and 25 Oct. 1788). PANL, GN 2/1/A, vol. 10,154-5. Jones v. Moor et al, 27 Sept. 1766, Trinity District, PANL, GN 5/4/B/l. 15 Geo. Ill, c. 31 (1775). Sean Cadigan, Hope and Deception in Conception Bay: Merchant-Settler Relations in Newfoundland, 1785-1855 (Toronto: University of Toronto Press, 1995), 84. Cadigan makes this claim based on his sample of the Harbour Grace district court records after 1787. Ibid., chap. 5. Thus, in a recent review article, Olaf Janzen asserts: 'Recent work by Sean Cadigan, Peter Pope, John Crowley and others ... indicates that "debt slavery," which did come to characterize the relationship between fisherman and merchant in the nineteenth and twentieth centuries, was far from absolute in the eighteenth century, and that the emerging truck system was a mutually beneficial relationship, if not necessarily an equitable one. To employ words like 'slaves' is to perpetuate an outmoded mythology/ See Olaf Uwe Janzen, 'Response to Garfield Fizzard's essay, "Newfoundland's First Known School,"' Newfoundland Studies XI, 1,' in Newfoundland Studies 12,1 (Spring 1996): 50-53 at 52. Emphasis added. See Douglas Hay and Paul Craven, 'Master and Servant in England and the Empire: A Comparative Study/ Labour/Le Travail 31 (Spring 1993): 175-84; Paul Craven and Douglas Hay, 'The Criminalization of "Free" Labour: Master and Servant in Comparative Perspective/ Slavery &1 Abolition 15 (1994): 71-101. Head, Eighteenth Century Newfoundland, chap. 7. On Cartwright's tenure as a surrogate, see R.H. Cuff, ed., Dictionary of Newfoundland and Labrador Biography (St John's: Harry Cuff Publications, 1990), 53. See Gordon Handcock, The Story of Trinity (Trinity, NF: Trinity Historical Society, 1997), esp. 10-12, 61-2. Lester v. Cole & Mahany, 1 Nov. 1766, Trinity District, PANL, GN 5/4/B/l. Gerald M. Sider, Culture and Class in Anthropology and History: A Newfoundland Illustration (Cambridge: Cambridge University Press, 1986). See Jerry Bannister, '"A Species of Vassalage": The Issue of Class in the Writing of Newfoundland History/ Acadiensis 24 (Autumn 1994): 134-44.

Notes to pages 246-8 373 81 For a critique of the traditional model of paternalism, see Douglas Hay, 'Patronage, Paternalism, and Welfare: Masters, Workers, and Magistrates in Eighteenth-Century England/ International Labor and Working-Class History 53 (Spring 1998): 27-45. 82 Sider, Culture and Class in Anthropology and History, 55. 83 Bryan Palmer, Working Class Experience: Rethinking the History of Canadian Labour, 1800-1991 2nd ed. (Toronto: McClelland & Stewart, 1992), 41-8; Cadigan, Hope and Deception, 83-6 and 116-20. 84 See, inter alia, Judith Fingard, Jack in Port: Sailortowns of Eastern Canada (Toronto: University of Toronto Press, 1982); David Alexander, 'Literacy Amongst Canadian and Foreign Seamen, 1863-1869,' in R. Ommer and G. Panting, eds., Working Men Who Got Wet (St John's: Maritime History Group, 1980), 3-33. 85 Daniel Vickers and Vince Walsh, 'Young Men and the Sea: The Sociology of Seafaring in Eighteenth-Century Salem, Massachusetts,' Social History 24 (1999): 17-22. 86 Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge: Cambridge University Press, 1987), chap. 5. 87 The Newfoundland Journal of Aaron Thomas, Able Seaman in H.M.S. Boston, ed. Jean Murray (London: Longmans, 1968), 189-92. 88 Richard Henry Dana, Two Years before the Master: A Personal Narrative of Life at Sea, ed. Thomas Philbrick (1840; reprinted, London: Penguin, 1981, 464— 71. 89 PANL, GN 2 / 1 /A, vol. 4, 263-4. Emphasis added. 90 The minutes stipulate that Patrick Lundrigan was a servant of the merchant whose fish had been stolen, and the other two men - Roger Dullahanty and Thomas Quinn - may also have been working under the complainant's direction. The men testified that they had been drunk the night of the theft and could not remember exactly what they had done. 91 Hill v. Quinn, Dullahanty, and Lundrigan, 14 Oct. 1790, Ferryland District, PRL, 340.9/N45, VT, Rare Books. The original information had been taken by Henry Sweetland, a local JP, who issued a search warrant and then examined the suspects. The hearing and sentencing took place two weeks later, at a formal sitting of Sweetland and two other justices of the peace. 92 Dening, Mr. Bligh's Bad Language, esp. 113-15. On this point see also E.P. Thompson, 'Folklore, Anthropology, and Social History/ Indian Historical Review 3 (1977): 248-66 at 255. 93 Kane v. Colbert et ai, 30 Aug. 1785, Ferryland District, PRL, 340.9/N45, VT, Rare Books.

374 Notes to pages 248-56 94 Rediker, Between the Devil and the Deep Blue Sea, chap. 5. See also Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000), chap. 5. 95 Stanweth v. Goold, 30 May 1755, Trinity District, PANL, GN 5/4/B/1, box 1. 96 Lester v. Walden, 18 June 1755, Trinity District, PANL, GN 5/4/B/l, box 1. 97 Brock v. Sargent, 12 Nov. 1755, Trinity District, PANL, GN 5/4/B/l, box 1. 98 See the minutes for 15 Feb. 1756, Trinity District, PANL, GN 5/4/B/l, box 1. 99 For a sense of the economic relations (i.e., debt, credit, and contracts) and the judicial business typically brought before courts in fishing communities, see Daniel Vickers, Farmers and Fishermen: Two Centuries of Work in Essex County, Massachusetts, 1630-1850 (Chapel Hill: Institute of Early American History and Culture, 1994), 150-203. 100 Welch v. Saunders, 11 Sept. 1773, Ferryland District, PRL, 340.9/N45, VT, Rare Books. 101 On the practice of 'working up' see Richard B. Morris, Government and Labor in Early America (Boston: Northeastern University Press, 1981), 265. 102 Andrews v. Taylor, 23 Aug. 1786, Trinity District, PANL, GN 5/4/B/l, box 2. 103 Ibid. 104 Richard B. Morris, Government and Labor in Early America (Boston: Northeastern University Press, 1981), 262-73. 105 Andrews v. Taylor, 23 Aug. 1786, Trinity District, PANL, GN 5/4/B/l, box 2. 106 Ibid. 107 M.G. Stephenson to Sir Wlm Parker, 29 Sept. 1810, PANL, MG 204, Duckworth Papers, box 1, 01351-52. 108 Ibid. Chapter 8: The Fall of Naval Government 1 D.W. Prowse, A History of Newfoundland from the English, Colonial, and Foreign Records (1895; reprinted, Belleville, ON: Mika Studio, 1972); A.H. McLintock, The Establishment of Constitutional Government in Newfoundland, 1783-1832: A Study of Retarded Colonisation (London: Longmans, Green, 1941). For reviews of liberal historiography, see George Story, People of the Landwash: Essays on Newfoundland and Labrador. Melvin Baker, Helen Peters, and Shannon Ryan, eds. (St John's: Harry Cuff Publications, 1997), 77-101 and 116-28; Peter Neary, 'The Writing of Newfoundland History/

Notes to pages 256-7 375

2

3

4

5

6

7

in J.K. Hiller and P. Neary, eds., Newfoundland in the Nineteenth and Twentieth Centuries: Essays in Interpretation (Toronto: University of Toronto Press, 1980), 3-13; Olaf Uwe Janzen, 'Newfoundland and the International Fishery,' in M. Brook Taylor, ed., Canadian History: A Reader's Guide, Volume 1: Beginnings to Confederation (Toronto: University of Toronto Press, 1994) 280324; James K. Hiller, 'Is Atlantic Canadian History Possible?,' Acadiensis 30, 1 (Autumn 2000): 16-22. Keith Matthews, 'Historical Fence Building: A Critique of the Historiography of Newfoundland,' Newfoundland Quarterly 74 (Apr. 1978): 21-9; Keith Matthews, 'The Class of '32: St John's Reformers on the Eve of Representative Government/ Acadiensis 6, 2 (1977): 80-94; Keith Matthews, Lectures on the History of Newfoundland, 1500-1830 (St John's: Breakwater Books, 1988), chap. 30. Patrick O'Flaherty, 'The Seeds of Reform: Newfoundland, 1800-18,' Journal of Canadian Studies 23 (Fall 1988): 39-56; Patrick O'Flaherty, 'Government in Newfoundland Before 1832: The Context of Reform,' Newfoundland Quarterly 84 (Oct. 1988); 26-30; Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999). O'Flaherty also probed the writings of Carson and Morris in The Rock Observed: Studies in the Literature of Newfoundland (Toronto: University of Toronto Press, 1979), 49-71. Sean Cadigan, 'Economic and Social Relations of Production on the Northeast-coast of Newfoundland, with Special Reference to Conception Bay, 1785-1855' (PhD thesis, Memorial University, 1991), 108-11,179,190, 326-7, 318-21; Sean Cadigan, 'The Staple Model Reconsidered: The Case of Agricultural Policy in Northeast Newfoundland, 1785-1855,' Acadiensis 21 (Spring 1992): 54—9; Sean Cadigan, Hope and Deception in Conception Bay: Merchant-Settler Relations in Newfoundland, 1785-1855 (Toronto: University of Toronto Press, 1995). John P. Greene, Between Damnation and Starvation: Priests and Merchants in Newfoundland Politics, 1745-1855 (Montreal: McGill-Queen's University Press, 1999), chaps. 1-4. For a different view, which stresses that the reformers were simply 'pushing at an open door,' see Christopher English, 'The Official Mind and Popular Protest in a Revolutionary Era: The Case of Newfoundland, 1789-1819,' in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume One: Law, Politics, and Security Measures, 1608-1837 (Toronto: The Osgoode Society 1996), 316. For overviews of the political environment in contemporary Britain and Ireland, see Linda Colley, Britons: Forging the Nation, 1707-1837 (New Haven: Yale University Press, 1992), chap. 8; R.F. Foster, 'Ascendancy and

376 Notes to pages 258-9

8

9

10 11

12

13

14

15 16 17

Union/ in R.F. Foster, ed., The Oxford History of Ireland (Oxford: Oxford University Press, 1992), 134-73. I develop this argument further in, 'Whigs and Nationalists: The Legacy of Judge Prowse's History of Newfoundland,' Acadiensis 32,1 (Autumn 2002): 84-109. In 1815 the island's population was over 40,000, and Irish Catholics comprised a large majority in St John's. On the socio-economic transformation during the Napoleonic Wars, see Shannon Ryan, 'Fishery to Colony: A Newfoundland Watershed, 1793-1815,' in P.A. Buckner and David Frank, eds., The Acadiensis Reader, Volume One: Atlantic Canada Before Confederation 2nd ed. (Fredericton: Acadiensis Press, 1990), 138-56. Patrick O'Flaherty, 'John Ryan,' DCB, 7:151-6. Patrick O'Flaherty, 'Sir Francis Forbes,' DCB, 7: 301^; Bruce Kercher, 'Law Reports from a Non-Colony and a Penal Colony: The Australian Manuscript Decisions of Sir Francis Forbes as Chief Justice of Newfoundland,' Dalhousie Law Journal 19, 2 (Fall 1996): 417-24. On the creation of a public sphere generally, see Jiirgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger (Cambridge, Mass.: Massachusetts Institute of Technology Press, 1991), esp. 19-26; Craig Calhoun, 'Hambermas and the Public Sphere,' in C. Calhoun, ed., Habermas and the Public Sphere (Cambridge, Mass.: Massachusetts Institute of Technology, 1992), 241. On the cultural impact of the growth of a local press, see Robert Darnton, The Kiss ofLamourette: Reflections in Cultural History (New York: Norton, 1990), chaps. 7-9. The Act 51 Geo. Ill, c. 45 (1811) empowered the governor to tender building lots for thirty-year leases. See Prowse, History of Newfoundland, 386; Sean Cadigan, The Role of the Fishing Ships' Rooms Controversy in the Rise of a Local Bourgeoisie: St. John's, Newfoundland, 1775-1812' (unpublished ms., Centre for Newfoundland Studies, 1992). William Carson, A Letter to the Members of Parliament of the United Kingdom (Greenock: W. Scott, 1812), 3-4. In 1808 Carson emigrated from Scotland to St John's, where he worked as a medical doctor: over the next thirty years he remained at the heart of colonial politics and the edge of agitation for reform. See Patrick O'Flaherty, 'William Carson,' DCB, 7:151-6. William Carson, Reasons for Colonizing the island of Newfoundland (Greenock: W. Scott, 1813), 3-4, 6-8,12-13,24-6. Suzanne Ellison, Historical Directory of Newfoundland and Labrador Newspapers, 1806-1996 (St John's: Memorial University, 1997), 108-16 and 132-3. For an incisive analysis of the role of the press in fostering public opinion,

Notes to pages 259-63 377

18

19 20

21

22

23 24

25 26 27 28 29

30 31 32

33

see Jeffrey McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791-1854 (Toronto: University of Toronto Press, 2000), esp. chaps. 3-4. On the origins of freedom of the press in England, see Valerie Frith, "'That Men May be Warned": The Legacy of Tutchin's Case/ in Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the Old World and the New: Essays in Honour ofJ.M. Beattie, 208-34. Patrick O'Flaherty, 'James Lundrigan/ DCB, 6: 409-11. Anon, A Report of Certain Proceedings of the Inhabitants of the Town of Saint John, in the island of Newfoundland, with the view to obtain a REFORM of the LAWS, more particularly in the mode of their administration, and an INDEPENDENT LEGISLATURE (St John's: Lewis Ryan, 1821), esp. iv, 10-11. Morris had emigrated from Ireland in 1804, entered the mercantile trade, and soon became a prominent public figure. See John Mannion, 'Patrick Morris/ DCB, 7: 623-34. Report of Certain Proceedings, 11. Eight of the thirteen men appointed to the committee were Roman Catholics. See John Mannion, 'Henry Shea/ DCB, 6: 709-11; Derek Bussy, 'Patrick Doyle/ DCB, 8: 234-5; O'Flaherty, 'Seeds of Reform/ 43. Report of Certain Proceedings, 12-13,19-20. The Newfoundland reformers were thereby able to capitalize on political trends in contemporary England. See Richard R. Follett, Evangelicalism, Penal Theory, and the Politics of Criminal Law Reform in England, 1808-30 (New York: Palgrave, 2001), chap. 8. Parliamentary Debates, n.s., vol. 5 (28 May 1821), 1015-16; Journals of the House of Commons, vol. 76 (1821), 388. Ibid. On 17 May 1821 Governor Hamilton forwarded this letter to the reform committee. See Report of Certain Proceedings, 31-2. Report of Certain Proceedings, 40-62. See E.J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality, 2nd ed. (Cambridge: Cambridge University Press, 1992), chap. 1; Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism, 2nd ed. (New York: Verso, 1991), chap. 9. Carson, Reasons for Colonizing Newfoundland, 5. Report of Certain Proceedings, 43-4. Anon., Observations on the Present State of Newfoundland, in Reference to its Courts of Justice (London: A. Hancock, 1823), 2. The pamphlet was addressed to Lord Bathurst, the Colonial Secretary, and signed by 'Britannicus.' Eric Hobsbawm, On History (London: Abacus, 1997), chap. 21.

378 Notes to pages 263-4 34 5 Geo. IV, c. 67 (1824). The Judicature Act was limited to a five-year term. Two other acts passed in 1824 also revised aspects of the island's legal system: the Fisheries Act (5 Geo. IV, c. 51), and the Marriage Act (5 Geo. IV, c. 68). 35 5 Geo. IV, c. 51, s. 1 (1824). I thank Patrick O'Flaherty for kindly providing the statutory reference to the repeal of King William's Act. 36 The 1825 Royal Charter, which was promulgated on 2 January 1826, was printed in Henry Winton, ed., Select Cases from the Records of the Supreme Court of Newfoundland (St John's and London: Henry Winton and Baldwin & Craddock, 1829), 559-74. 37 O'Flaherty, Old Newfoundland, 139^0. As O'Flaherty points out, the fact that the statutes of 1824 referred to Newfoundland as a colony may have awarded a type of official colonial status, but they bestowed only piecemeal reforms. 38 Mercantile Journal, 5 Jan. and 2 Mar. 1826. 39 Frederic F. Thompson, 'Sir Thomas John Cochrane,' DCB, 10:178-80. On Cochrane's administration, see Gertrude Gunn, The Political History of Newfoundland, 1832-1864 (Toronto: University of Toronto Press, 1966), chap. 1; O'Flaherty, Old Newfoundland, chap. 7; Cadigan, Hope and Deception, chap. 5. 40 Cochrane to Wilmot Horton, 29 July 1825, as quoted in McLintock, Establishment of Constitutional Government, 164. 41 Christopher English, 'From Fishing Schooner to Colony: The Legal Development of Newfoundland, 1791-1832,' in Louis Knafla and Susan Binnie, eds., Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press, 1995), 85-8; O'Flaherty, Old Newfoundland, 141. 42 Mercantile Journal, 9 Feb. 1826. See also Melvin Baker, 'The Government of St. John's, Newfoundland, 1800-1921' (PhD thesis, University of Western Ontario, 1980), 30-5. 43 Cochrane to Bathurst 27 May 1826, enclosures 1-7, PANL, CO 194/72,158. 44 Cochrane to Bathurst, 27 May 1826, PANL, CO 194/72,160-3. In March 1827 the government asked Parliament to consider new duties on imports into Newfoundland. See Journals of the House of Commons 82 (1826-7), 359. 45 Stephen to Wilmot Horton, 16 Sept. 1826, PANL, CO 194/73,158-62, A prominent figure in formulating Colonial Office policy, Stephen disdained partisan politics and stressed expediency over public opinion. See Phillip Buckner, 'The Colonial Office in British North America, 1801-50,' DCB, 8: xxx-xxxiv; A.G.L. Shaw, 'James Stephen and Colonial Policy/ Journal of Imperial and Commonwealth History 20,1 (Jan. 1992): 11-34. 46 Cochrane to Bathurst, 17 November 1826, PANL, CO 194/72, 332-3. 47 See the editorial in Public Ledger (St John's), 18 May 1827. After emigrating

Notes to pages 265-6 379

48 49 50

51

52

53

54 55 56 57 58

59 60

from England, Henry Winton founded (with Alexander Haire) the Public Ledger in 1820. See Patrick O'Flaherty, 'Henry Winton/ DCB, 7: 947-50. Patrick Morris, Remarks on the State of Society, Religion, Morals, and Education at Newfoundland (London: A. Hancock, 1827), 10. See Patrick O'Flaherty, The Rock Observed: Studies in the Literature of Newfoundland (Toronto: University of Toronto Press, 1979) chap. 4. Memorial of the St. John's Chamber of Commerce to Lord Bathurst, 9 Oct. 1827, PANL, CO 194/78,131-4. Thomas Brooking registered his opposition to the duty in a letter to the local press. See the Public Ledger, 27 Nov. 1827. The proposed 2.5 per cent duty covered all imported items except salt and potatoes; the government also planned new taxes on wine and spirits. See the editorial in the Public Ledger, 22 Apr. 1828. A transcript of the debate appears in the Public Ledger, 18 July 1828. Robinson's attack singled out the governor's mansion which, paid out of unauthorized bills, had swelled beyond original estimates. The Colonial Office had already censured Cochrane for financial mismanagement: see McLintock, Establishment of Constitutional Government, 165. Thomas Brooking succeeded Newman Hoyles as president of the Chamber of Commerce for 1828, and John Dunscombe and William Thomas were elected vice-presidents. All four men had supported the proposal for a charter of incorporation. As leading Protestant merchants, they each served as grand jury foremen and leaders of local philanthropic societies. See Royal Gazette, 19 Aug. 1828; Keith Matthews, 'Thomas Brooking/ DCB, 9: 84-6; Keith Matthews, Profiles of Water Street Merchants (St John's: Memorial University, 1980). Cochrane to Murray, 14 Dec. 1828, PANL, CO 194/76, 385. T.W. Acheson, Saint John: The Making of a Colonial Urban Community (Toronto: University of Toronto Press, 1985), 55-9, 66. Patrick Morris, Arguments to Prove the Policy and Necessity of Granting Newfoundland a Constitutional Government (London: Hunt & Clarke, 1828), 11-12. Ibid., 27-8. J. Bristow, Brief Remarks on a Pamphlet entitled 'Arguments to Prove the Necessity of Granting to Newfoundland a Constitutional Government' (Poole: Moore and Sydenham, 1828), 8-15, 19, 28. The column was reprinted in the Newfoundlander, 2 Oct. 1828. The Neicfoundlander reprinted Morris's pamphlets in extracts over several weeks from 23 February to 19 March 1828. In the Public Ledger, 25 Aug. 1828, Henry Winton termed Morris's pamphlet 'decidedly the best yet/ and, on 29 August, Winton offered a critique of Bristow's essay.

380 Notes to pages 266-8 61 The son of the reformer Henry Shea, John Shea established the Newfoundlander in 1827. See Mannion, 'Henry Shea/ DCB, 6: 711. 62 Newfoundlander, 21 Nov. 1827. 63 18 Geo. Ill, c. 12 (1778). This statute is usually referred to as the 'Colonial Tax Repeal Act' or the 'Declaratory Act.' On the evolution of the constitutional argument against 'taxation without representation,' see Bernard Bailyn, The Ideological Origins of the American Revolution, 2nd ed. (Cambridge: Harvard University Press, 1992), esp. 209-21. 64 In June 1828 Shea also questioned whether the new tax would be used to build 'a new gaol, infirmary, work-house, treadmill... to improve our morals.' See Newfoundlander, 9 Apr. 1828,19 June 1828. 65 Public Ledger, 25 Dec. 1827. 66 Ibid., 22 Apr. 1828. 67 Ibid., 25 Apr. 1828. 68 Ibid., 17 June 1828. See also the editorial for 18 July 1828. In an 18 April 1828 editorial Winton had complained that the 'Demon of Discord has attended our meetings.' 69 Newfoundlander, 19 June 1828. 70 Public Ledger, 19 Aug. 1828. 71 Ibid., 7 Oct. 1828. See also the editorials on 3 and 24 October. 72 Ibid.,' Atomus' declared in favour of a legislature but called for a 'fair' discussion of all the options. 73 Ibid., 18 Nov. 1828. The press played a similar role in other reform movements: see, for example, Linda Colley, Britons: Forging the Nation, 17071837 (New Haven: Yale University Press, 1992), 342-3; Carol Wilton, '"A Firebrand amongst the People": The Durham Meetings and Popular Politics in Upper Canada,' Canadian Historical Review 85 (Sept. 1994): 346-75 at 356. 74 Dated 1 December 1828, the notice requested the high sheriff to convene a public meeting 'for the purpose of taking into consideration the necessity of petitioning Parliament against any further imposts or duties upon imports or new duties upon exports, and the expediency of praying that His Majesty's Government will grant a Constitutional Legislative Government to this island/ While Winton noted the announcement with 'peculiar satisfaction/ John Shea called for 'a firm and unanimous appeal to the British Legislature.' Both men signed the 1829 petition. See Public Ledger, 2 Dec. 1828; Newfoundlander, 4 Dec. 1828. 75 See PANL, CO 194/79, 299-303, 'Petition for a Legislative Government, 1 January 1829'; PANL, CO 194/72,158, Cochrane to Bathurst, 27 May 1826, enclosure 7, 'Memorial Against a Charter of Incorporation, 23 February

Notes to pages 268-70 381 1826.' Among the 498 signatories were several prominent figures: William B. Row, a merchant and lawyer; Edward Kielly, a Catholic surgeon; and John Ryan, the publisher of the Royal Gazette. 76 Imported items reported for sale 2 December 1828 in the Public Ledger include: tea (William Thomas); wine (Robinson and Brooking); rum and molasses (John Dunscombe); flour and beef (Brown, Hoyles). 77 John Edward FitzGerald, 'Conflict and Culture in Irish-Newfoundland Roman Catholicism, 1829-1850' (PhD thesis, University of Ottawa, 1997), chap. 2; John Edward FitzGerald, 'Michael Anthony Fleming and Ultramontanism in Irish-Newfoundland Roman Catholicism, 1829-1850,' CCHA Historical Studies 64 (1998): 27-44. 78 See Raymond Lahey, Thomas Scallan,' DCB, 6: 690^4; Raymond Lahey, 'Catholicism and Colonial Policy in Newfoundland, 1779-1845,' in T. Murphy and G. Stortz, eds., Creed and Culture: The Place of English-Speaking Catholics in Canadian Society, 1750-1930 (Montreal: McGill-Queen's University Press, 1993), 50-1, 65-8; O'Flaherty, 'Government in Newfoundland Before 1832,' 30. Except for Morris, who was living in Ireland, the leaders of the older reform movement - notably Doyle, Shea, Hogan, and Beck - were active in 1828. Laurence O'Brien, a Catholic merchant and later a prominent politician, was a recent addition. 79 O'Flaherty, Old Newfoundland, 144. 80 By matching the signatures from the 1829 petition with those from the 1826 memorial, I was able to identify nineteen non-elite signatories: one cooper, one fish culler, one baker, one painter, three sailmakers, one smith, two planters, one carpenter, two spirit dealers, one shopkeeper, three coopers, one innkeeper, and one wheelwright. See PANL, CO 194/79, 299-303, Petition for a Legislative Government, 1 Jan. 1829; CO 194/72,158, Cochrane to Bathurst 27 May 1826, enclosure 7, Memorial Against a Charter of Incorporation, 23 Feb. 1826. 81 Gail Campbell, 'Disenfranchised But Not Quiescent: Women Petitioners in New Brunswick in the Mid-19th Century/ in Janet Guildford and Suzanne Morton, eds., Separate Spheres: Women's Worlds in the 19th-century Maritimes (Fredericton: Acadiensis Press, 1994), 39-66. 82 Rusty Bittermann, 'Women and the Escheat Movement,' in Guildford and Morton, eds., Separate Spheres, 23-38. On the informal regulation of gender in rural Newfoundland, see Willeen Keough, 'The Riddle of Peggy Mountain: Regulation of Irish Women's Sexuality on the Southern Avalon, 17501860,' Acadiensis 31, 2 (Spring 2002): 38-70. 83 Sean Cadigan, 'Whipping them into Shape: State Refinement of Patriarchy among Conception Bay Fishing Families, 1787-1825,' in C. McGrath, B.

382 Notes to pages 270-1

84

85

86 87

88 89 90 91 92 93 94 95 96

Neis, and M. Porter, eds., Their Lives and Times: Women in Newfoundland and Labrador: A Collage (St John's: Killick Press, 1995), 48-58. Patrick Morris, Remarks on the State of Society, Religion, Morals, and Education at Newfoundland (London: A. Hancock, 1827), 13-14. Emphasis in the original. Cecilia Morgan, Public Men and Virtuous Women: The Gendered Languages of Religion and Politics in Upper Canada, 1791-1850 (Toronto: University of Toronto Press, 1996); Allan Greer, The Patriots and the People: The Rebellion of 1837 in Rural Lower Canada (Toronto: University of Toronto Press, 1993), chap. 7. Carson, Letter to the Members of Parliament, 4. There is not space here to discuss the historiography but see, inter alia, J. Murray Beck, Joseph Howe, volume I: Conservative Reformer, 1804-1848 (Montreal: McGill-Queen's University Press, 1982), esp. chaps. 17-19; Rosemary Ommer, 'The 1830s: Adapting Their Institutions to Their Desires,' in Phillip Buckner and John Reid, eds., The Atlantic Region to Confederation: A History (Toronto: University of Toronto Press, 1994), 300-1; Rusty Bittermann, 'Agrarian Protest and Cultural Transfer: Irish Emigrants and the Escheat Movement on Prince Edward Island,' in Tom Power, ed., The Irish in Atlantic Canada (Fredericton: Acadiensis Press, 1991), 96-106; Peter Burroughs, The Canadian Crisis and British Colonial Policy, 1828-1841 (Toronto: Macmillan, 1979); Paul Romney, 'From the Types Riot to the Rebellion: Elite Ideology, Anti-Legal Sentiment, Political Violence, and the Rule of Law in Upper Canada,' Ontario History 79 (1987): 113^4; Allan Greer, 'Historical Roots of Canadian Democracy/ Journal of Canadian Studies 34,1 (Spring 1999): 7-26. See Matthews, 'Class of '32,' 80-94. Newfoundlander, 19 June 1828. Winton later attacked John Kent for not being resident in the colony long enough to sit in the Assembly. See Public Ledger, 3 Oct. 1828,18 Sept. 1832. Royal Gazette, 5 Oct. 1830. Public Ledger, 17 Sept. 1831. Ibid., 19 Dec. 1828; Newfoundlander, 25 Dec. 1828. Public Ledger, 23 Jan. 1829. Ibid., 20 Jan. 1829. See Frederick Madden, ed., Select Documents on the Constitutional History of the British Empire and Commonwealth, Volume III: Imperial Reconstruction, 1763-1840 (Westport, CT: Greenwood Press, 1987), section B; John Belcham, 'Republicanism, Popular Constitutionalism and the Radical Platform in early Nineteenth-Century England,' Social History 6 (Jan. 1981): 1-32.

Notes to pages 271-3

383

97 Cochrane to Murray, 13 Dec. 1828, PANL, CO 194/78, 39. 98 Bristow to Murray, 26 Feb. 1826, enclosure, 'Report of the Committee of Merchants Engaged in the Newfoundland Fishery at the Port of Poole', PANL, CO 194/79,128-31. The report called for the repeal of section 35 of 5Geo. IV, c. 67(1824). 99 Parliamentary Debates, 2nd ser., vol. 5 (6/7/13 Apr. 1829), 463, 533-5, 714; Parliamentary Debates, 2nd ser., vol. 14 (11 May 1830), 580-1. 100 Public Ledger, 12 May 1829. 101 Cochrane to Murray, 11 Dec. 1829, PANL, CO 194/78, 241-60. Cochrane also advised the government to add bread, flour, peas, and grain to the list of items exempted from the import duty. 102 The letters appear in Public Ledger, 13/23/30 July 1830 and 4/13/17 Aug. 1830. 103 Public Ledger, 14 Sept. 1830. 104 Royal Gazette, 28 Sept. 1830. It is doubtful whether Ryan had written the editorial; Patrick O'Flaherty has suggested that the author was perhaps John Collier Withers. See Patrick O'Flaherty, 'John Ryan,' DCB, 7: 765. 105 A nephew of Patrick Morris, Kent came to Newfoundland in 1820 and began working as a commission agent and auctioneer. Often compared to William Lyon Mackenzie, Kent was a combative populist who espoused democratic principles. See PB. Waite, 'John Kent/ DCB, 10: 398-400. 106 Public Ledger, 17 Sept. 1830. The emphasis on unity also characterized public reform meetings in Upper Canada. See Wilton, 'The Durham Meetings and Popular Politics in Upper Canada,' 356. 107 The committee consisted of Protestant merchants and lawyers (Thomas, Bennett, Row, Job and Bland), Catholic reformers (Doyle and Shea), a representative from Harbour Grace, and William Carson. See Public Ledger, 17 Sept. 1830. 108 Public Ledger, 18 Mar. 1831, letter from the delegation to William Thomas, 29 Dec. 1830. The paper reprinted all of the reform committee's correspondence. 109 Public Ledger, 15 Mar. 1831. 110 Ibid., 25 Mar. 1831. 111 Parliamentary Debates, 3rd ser., 4 (27 June 1831), 359-60. 112 PA. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815-1850 (Westport, CL: Greenwood Press, 1985), 1518, 151, 294; C.A. Bayly, Imperial Meridian: The British Empire and the World, 1780-1830 (London: Longman, 1989), 194-5, 209; Peter Burroughs, 'Liberal, Paternalist or Cassandra?: Earl Grey as a Critic of Colonial Self-Government/ Journal of Imperial and Commonwealth History 18 (1990): 33-5.

384 Notes to pages 274-6 113 Cochrane to Goderich, 14 Apr. 1831, PANL, CO 194/81, 73-81. 114 Cochrane to Goderich, 4 May 1831, PANL, CO 194/81,111-23. 115 Hay to Cochrane, 6 July 1831, as quoted in McLintock, Establishment of Constitutional Government in Newfoundland, 182. 116 Parliamentary Debates, 3rd ser., vol. 5 (25 July 1831), 283. The debate was also reprinted in the Public Ledger, 6 Sept. 1831. 117 Public Ledger, 6 Sept. 1831. 118 See Parliamentary Debates, 3rd ser., vol. 5 (25 July 1831), 288-9. On the cost of the colonies as an important political issue, see Bayly, Imperial Meridian, 194-5. 119 Newfoundlander, 6 Oct. 1831. 120 Public Ledger, 30 Sept. 1831. 121 Ibid., 7 Oct. 1831. 122 Newfoundlander, 6 Oct. 1831. 123 Public Ledger, 30 Sept. 1831. 124 The Public Ledger reprinted the petition to the Crown and Parliament on 7 October 1831. 125 Henry Winton noted that it was 'gratifying to perceive that the inhabitants of the outports are unanimous in their desire to obtain the same object.' See Public Ledger, 11 Oct. 1831. 126 In 1821 Parliament considered a petition from Ferryland on the Lundrigan affair. See Journals of the House of Commons 76 (1821), 388. On Robert Pack's reform activities, see Keith Matthews, 'Robert Pack/ DCB, 8: 674. 127 An editorial argued that if the island acquired a local legislature then 'we have no hesitation in saying, that in five years its labours would be productive of incalculable advantage.' See the Conception Bay Mercury (Harbour Grace), 21 Aug. 1829. 128 Public Ledger, 24 Sept. 1830. 129 Journals of the House of Commons 87 (1831-2), 171-2,298. The Harbour Grace and Carbonear petitions originated from meetings held 4 October 1831. A public meeting on 28 October 1831 had approved the memorial from Brigus. See Public Ledger, 12/21/18 Oct. 1831,18 Nov. 1831. 130 The meetings occurred in Burin on 9 November 1831 and in St Mary's on 6 December 1831. See Public Ledger, 13,27 Jan. 1832. 131 Cadigan, 'Staple Model Reconsidered,' 59. 132 Parliamentary Debates, 3rd ser., vol. 6 (13 Sept. 1831), 1377-8. The Public Ledger printed a transcript on 15 November 1831. Hume admitted during the ensuing debate that he had offered advice to Robinson, and the quality of Robinson's address suggests substantial preparation and outside assistance.

Notes to pages 276-9 385 133 Ibid. 134 Parliamentary Debates, 3rd sen, vol. 6 (13 Sept. 1831), 1381-4. Hume's endorsement was important because he acted as a liaison between the Grey administration and the radicals on the fringe of the Whig party. During the crisis over the Reform Bill in 1831, the Whigs needed all the support they could muster. For a synopsis of the political situation in England, see Richard Brown, Revolution, Radicalism and Reform: England, 1780-1846 (Cambridge: Cambridge University Press, 2000), chap. 4. 135 Labouchere had visited the Canadas in 1824, served on the select committee of 1828, and led the circle of Whigs with whom Howick studied in 1830. See Buckner, Transition to Responsible Government, 149, 255. 136 Parliamentary Debates, 3rd ser., vol. 6 (13 Sept. 1831), 1381-^. 137 Ibid. 138 Gunn, Political History of Newfoundland, 11. 139 The report recommended that the Newfoundland Governor be given the same commission and instructions as the Governor of Nova Scotia, with the added instruction to ask the assembly to pass a bill incorporating a council. Stephens's report is reprinted in McLintock, Establishment of Constitutional Government, 207-10. On the use of different legislative models in imperial policy, see J.M. Ward, Colonial Self-Government: The British Experience (London: Macmillan, 1976), esp. 126-8. 140 Public Ledger, 2 Mar. 1832, letter from Brooking to Thomas, 5 Jan. 1832. 141 Ibid., 27 Mar. 1832, letter from Brooking to Thomas, 25 Jan., and letter from Howick to Robinson, 25 Jan. 1832. 142 2-3 William IV, c. 78 (1832). 143 After 1832 Winton became a harsh critic of the political influence of the Roman Catholic Church. In an episode which marked the violent sectarian conflict of the 1830s, Henry Winton was violently attacked in 1835 by a group of masked men, presumed to be Irish Catholics, and had his face and ears brutally mutilated. Two years later the Public Ledger urged the government to revoke representative government in Newfoundland, and in 1842 the elected assembly was amalgamated with an appointed council. See Patrick O'Flaherty, 'Henry David Winton,' DCB, 8: 467-70; Patrick O'Flaherty, 'The Road to Saddle Hill,' Newfoundland Quarterly 89, 3 (July 1995): 21-6; Linda Little, 'Collective Action in Outport Newfoundland: A Case Study from the 1830s,' Labour/Le Travail 26 (Fall 1990): 7-35. 144 On the use of warships in assistance of civil authority, see O'Flaherty, Old Newfoundland, 164-78.

386 Notes to pages 280-7 Chapter 9: Conclusion 1 On the impact of Prowse's work, see chapter 2, note 1 above. 2 For a recent example of this view, see John P. Greene, Between Damnation and Starvation: Priests and Merchants in Newfoundland Politics, 1745-1855 (Montreal: McGill-Queen's University Press, 1999), esp. chap. 1. 3 See H. V. Bowen, Elites, Enterprise and the Making of the British Overseas Empire, 1688-1775 (New York: St Martin's Press, 1996); Frederick Bernays Wiener, Civilians under Military Justice: The British Practice since 1689, especially in North America (Chicago: University of Chicago Press, 1967). 4 C.A. Bayly, Imperial Meridian: The British Empire and the World, 1780-1830 (London: Longman, 1989), 9. 5 On legal pluralism, see John Griffiths, 'What is Legal Pluralism?,' Journal of Legal Pluralism 24 (1986): 1-55; Louis Knafla and Susan Binnie, 'Law and Legal Pluralism in the Making of Modern Societies/ in L. Knafla and S. Binnie, eds., Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press, 1995), 3-29. 6 John Elliott, 'Colonial Identity in the Atlantic World,' in Nicholas Canny and Anthony Pagden, eds., Colonial Identity in the Atlantic World, 1500-1800 (Princeton: Princeton University Press, 1987), 7. 7 The quotation is taken from an extract of the Quarterly printed in the Newfoundlander (St John's), 20 Aug. 1829, as cited in Patrick O'Flaherty, Old Newfoundland: A History to 1843 (St John's: Long Beach Press, 1999), 144. 8 Patrick O'Flaherty, 'Government in Newfoundland before 1832: The Context of Reform,' Newfoundland Quarterly 84, 2 (Fall 1988): 26-30. 9 Jack P. Greene, Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (Chapel Hill: University of North Carolina Press, 1988), 199-200. See also Doron Ben-Atar, 'The American Revolution' in Robin Winks, ed., The Oxford History of the British Empire, Volume V: Historiography (Oxford: Oxford University Press, 1999), 94-112. 10 Allan Greer and Ian Radforth, 'Introduction,' in Greer and Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press, 1992), 1-16. 11 On this model of paternalist authority, see Bryan D. Palmer, Working-Class Experience: Rethinking the History of Canadian Labour, 1800-1991 (Toronto: McClelland & Stewart, 1992), chap. 1. 12 Michael Braddick, State Formation in Early Modern England, c. 1550-1700 (Cambridge: Cambridge University Press, 2000), chap. 1. On this point, see also Michael Ignatieff, 'State, Civil Society and Total Institutions: A Critique

Notes to pages 287-8 387 of Recent Social Histories of Punishment,' in Stanley Cohen and Andrew Scull, eds., Social Control and the State: Historical and Comparative Essays (Oxford: Basil Blackwell, 1983), 96-101. 13 F. Murray Greenwood and Barry Wright, 'Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada/ in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume One: Law, Politics, and Security Measures, 1608-2837 (Toronto: The Osgoode Society, 1996), 14-15. 14 David Hancock, '"A World of Business to Do": William Freeman and the Foundation of England's Commercial Empire, 1645-1707,' William and Mary Quarterly 3rd sen, 62,1 (Jan. 2000): 3-5, 34. 15 According to P.J. Marshall, in the years after the American Revolution, 'The contrast between local self-rule for white societies and autocracy for the rest that marked the nineteenth-century Empire was coming into being.' See P.J. Marshall, 'Britain Without America - A Second Empire?,' P.J. Marshall, ed., The Oxford History of the British Empire, Volume II: The Eighteenth Century (Oxford: Oxford University Press, 1998), 590.

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Bibliography of Primary Sources

A) Archives 1) Newfoundland and Labrador i) Provincial Archives of Newfoundland and Labrador ii) Provincial Resource Library, Newfoundland Collection iii) Centre for Newfoundland Studies, Memorial University of Newfoundland iv) Maritime History Archive, Memorial University of Newfoundland 2) Canada i) National Archives of Canada 3) United Kingdom i) Public Record Office ii) British Library iii) Poole Borough Archives, Dorset iv) Dorchester Records Office, Dorset B) Published Editions of Source Material C) Published Books and Pamphlets A. ARCHIVES 1. Newfoundland and Labrador i)

Provincial Archives of Newfoundland and Labrador Colonial Secretary's Letterbook

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390 Bibliography of Primary Sources Extracts of Government Records GN 2/1/B Typed Extracts, 1749-52,1780-4,1789-25 GN 1/13/1-4 Non-series, Miscellaneous, 1709-1800 Bound Minute Books of the Newfoundland District Courts GN5/4/B/1 Court of Sessions Trinity, 1753-92 Harbour Grace, 1788-91 G N 5 / 4 / C / 1 Court of Sessions Ferryland, 1786-91 Placentia, 1757-85 GN5/1/B/1 Surrogate Court Harbour Grace, 1787-92 Harbour Grace, 1775-1804 (Proclamations) Ferryland, 1789-90 Vice-Admiralty Court GN 5/5/A/7 St John's, 1789,1795-6 Colonial Office Papers CO 194 Volumes 1-42: Papers Relating to Newfoundland. Correspondence with the Board of Trade and Secretary of State, 16961798 (microfilm) Society for the Propagation of the Gospel in Foreign Parts Can I. Series C, Letterbooks, 1721-93 (microfilm) Duckworth Papers MG 204, Boxes 1 & 2,1808-14 Miscellaneous Records MG 707 Diary of Lieutenant John Dun, 1780-1 MG 860 Letterbook of Captain John Bowker, 1818 ii) Provincial Resource Library, Newfoundland Collection Bound Minute Books of the Newfoundland District Courts 340.9/N45 VT, Rare Book Cabinet Ferryland, 1773-96 Placentia, 1757-91 St John's, 1758-9 Trepassey-St Mary's-Bay Bulls, 1789-91 Typescripts of Primary Documents Extracts from Colonial Office Papers, 1731-43 "Extracts taken from a Journal of a Voyage to Newfoundland in 1726-27," by Edward Burd "Tyranny in St John's, 1705-06: A Sordid Story from the Colonial Records"

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iii) Centre for Newfoundland Studies, Memorial University of Newfoundland Typescripts of Primary Documents Commission appointing Francis William Drake to be Governor, 1750 Correspondence between the Colonial Office and the Governor, 17801825, known as the "D'Alberti Papers" Depositions taken by William Keen, 1731-32 Extracts of Commissions and Court Records, 1749-52 " Report to the Right Honourable Henry Dundas Respecting Newfoundland, December 1792," by John Reeves Papers of the Society for the Propagation of the Gospel in Foreign Parts CNS 567 Journals, 1701-1800 (microfilm) CNS 471 Series A-C, C / A, M Letterbooks (microfilm) Newfoundland Newspapers Royal Gazette (St John's, 1807-32) Mercantile Journal (St John's, 1816-27) Public Ledger (St John's, 1820-32) Newfoundlander (St. John's, 1827-32) Conception Bay Mercury (Harbour Grace, 1829-30) iv) Maritime History Archive, Memorial University of Newfoundland The Keith Matthews Collection Miscellaneous collection: extracts of documents relating to Newfoundland 2. Canada i)

National Archives of Canada Colonial Office Papers MG 11 CO 194/1-83: Papers Relating to Newfoundland. Correspondence with the Board of Trade and Secretary of State, 16961832 (microfilm)

3. United Kingdom i)

Public Record Office Admiralty Papers ADM 1 Volumes 470-2: Admiral's Dispatches, 1766-92 Volume 3881: High Court of Admiralty, 1747

392 Bibliography of Primary Sources Papers of the Board of Trade BT 1 Volume 8: Report on the Judicature in Newfoundland, 1792 BT 6 Volume 57: Correspondence relating to Newfoundland, 1706-1801 Volume 89: Report of Admiral Hugh Palliser, 1786 Volume 90: Minutes, 1768-86 Colonial Office Papers CO 5 Volume 200: Miscellaneous Correspondence, relating to America and the West Indies CO 194 Volumes 1-12: Newfoundland Outgoing Correspondence, 1696-1751 CO 195 Volumes 5-7: Newfoundland Incoming Correspondence, 1710-21 CO 326 Volume 45: Index to Newfoundland Correspondence, 1703-58 CO 391 Volumes 38-59: Minutes of the Board of Trade, 1729-51 The Rodney Papers PRO 30/20 Volume 4: Logbook of HMS Rainbow, 1749-51 Volume 6: Letterbook of Commodore Rodney, 1749-51 Secretary of State's Papers SP 36 Volumes 90-118: Miscellaneous References to Newfoundland Privy Council Papers PC 2 Volumes 60-135: Privy Council Registers, 1703-91 ii) British Library Add MS 9747 Add MS 35913 Add MS 36218 Add MS 38347

Add MS 38352 Add MS 15493

Blathwayt Papers: Petitions and Correspondence from Newfoundland, 1699-1701 Hardwicke Papers: Petitions and Correspondence from Newfoundland, 1711-12 Harkwicke Papers: Appeal from the St John's ViceAdmiralty Court, 1760 Liverpool Papers: Archibald Buchanan, 'Concerning Landed Property in Newfoundland' (manuscript treatise, 1786) Liverpool Papers: Reports on Newfoundland Judicature, 1792-4 Dr Gardner, 'Some facts collected, and observations made on the fisheries, and government of Newfoundland, showing the many advantages, which will arise to this Kingdom on colonizing that Island, to which is

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Egerton MS 921 King's MS 205

393

added a plan for a speeding settling of it' (manuscript treatise, 1784) 'State of the Trade to Newfoundland' (1705-6) 'General Reports of the State of the American Colonies' (1764)

iii) Poole Borough Archives, Dorset The Beamish Collection Miscellaneous collection: extracts of documents relating to Newfoundland Court Records QSF 1-146 Printed minutes of Quarter Sessions QSF 1-274 Printed indictments at Quarter Sessions S 17-35 Printed extracts from the Quarter Session Minute Books, 1769-73 iv) Dorchester Records Office, Dorset Newspapers The Sherbourne Mercury (1737-49) Records of the Overseers of the Poor PE/PUD/OV Parish of Puddletown (1770) PE/CEA/OV Parish of Cerne Abbas (1779) PE / PL / OV Parish of Poole (1787) Papers of the Lester-Garland Families D/ LEG Diaries and Accounts of Benjamin and Isaac Lester, 1761-1802 A computerized typescript reproduction of the entire Lester Diary was prepared under the direction of Professor Gordon Handcock at Memorial University. A complete copy is in the author's possession.

B. P U B L I S H E D E D I T I O N S OF SOURCE MATERIAL

Acts of the Privy Council of England: Colonial Series. Vols. 2-5 (1680-1783). London: His Majesty's Stationary Office, 1910-12. Calendar of State Papers, Colonial Series: America and West Indies. Vols. 27-44 (1712-38). London: His Majesty's Stationary Office, 1926-69. Calendar of Treasury Books and Papers. London: His Majesty's Stationery Office. Journals of the House of Commons. Journals of the House of Lords.

394 Bibliography of Primary Sources Manuscripts ofJ.B. Fortescue Preserved at Dropmore. Vols. 1-2 (1789-91). London: Historical Manuscripts Commission Reports, 1892-1927. United Society for the Propagation of the Gospel: Calendar of Letters, 1721-1793. London: List and Index Society, Special Series, 1972. Aspinall, Arthur, ed. The Later Correspondence of George III. Vol. 1. Cambridge: Cambridge University Press, 1962. Barlow, Edward. Barlow's Journal of His Life at Sea in King's Ships, East & West Indiamenfrom 1659 to 1703. Ed. Basil Lubbock. London: Hurst & Blackett, 1934. Bromley, J.S., ed. The Manning of the Royal Navy: Selected Public Pamphlets, 16931873. London: Navy Records Society, 1974. Byrne, Cyril J., ed. Gentlemen-Bishops and Faction Fighters: The Letters of Bishops O Donel, Lambert, Scallan and other Irish Missionaries. St John's: Jesperson Press, 1984. Cartwright, F.D., ed. The Life and Correspondence of Major Cartwright. 2 vols. 1826; reprinted London: Augustus Kelley, 1969. Cell, Gillian, ed. Newfoundland Discovered: English Attempts at Colonization, 1610-1630. London: Hakluyt Society, 1982. Chalmers, George, ed. Opinions of Eminent Lawyers on Various Points of English Jurisprudence, Chiefly Concerning the Colonies, Fisheries and Commerce of Great Britain: Collected and Digested from the Originals in the Board of Trade, and other Repositories. Burlington: C. Goodrich, 1858. Chippindall, W.H., ed. Memoirs of Lieutenant-Colonel Samuel Gledhill, LieutenantGovernor ofPlacentia and Commander-in-Chief of Newfoundland from 1719 to 1727. Kendal: Titus Wilson, 1910. Copley, Stephen, ed. Literature and the Social Order in Eighteenth-Century England. London: Croom Helm, 1984. Cuff, Robert, and Wilton, Derek, eds. Jukes' Excursions, Being a Revised Edition of Joseph Beete Jukes' "Excursions In and About Newfoundland During the Years 1839 and 1840." St John's: Harry Cuff Publications, 1993. Gwyn, Julian, ed. The Royal Navy and North America: The Warren Papers, 17361752. London: Navy Records Society, 1973. Lambert, Sheila, ed. House of Commons Sessional Papers of the Eighteenth Century: Volume 90, Newfoundland, 1792-93. Wilmington, DL: Scholarly Resources, 1975. Lavery, Brian, ed. Shipboard Life and Organization, 1731-1815. Aldershot, UK: Navy Records Society, 1998. Lysaght, A.M., ed. Joseph Banks in Newfoundland and Labrador, 1766: His Diary, Manuscripts and Collections. Berkeley: University of California Press, 1971.

Bibliography of Primary Sources 395 Matthews, Keith, ed. Collection and Commentary on the Constitutional Laws of Seventeenth-Century Newfoundland. St John's: Maritime History Group, Memorial University of Newfoundland, 1975. Murray, Jean, ed. The Newfoundland Journal of Aaron Thomas, Able Seaman in HMS Boston. London: Longmans, 1968. Owen, J.H., and Barnes, G.R., eds. The Private Papers of John, Earl of Sandwich, First Lord of the Admiralty, 1771-1782. London: Navy Records Society, 1932. Poynter, F.N.L., ed. The Journal of James Yonge, 1647-1721. London: Longmans, 1963. Ranft, B., ed. The Vernon Papers. London: Navy Records Society, 1958. Schonhorn, Manuel, ed. A General History of the Pyrates. By Daniel Defoe [Charles Johnsonj. 1724; reprinted London: J.M. Dent & Sons, 1972. Stephenson, Carl, and Frederick Marcham, eds. Sources of English Constitutional History. New York: Harper & Brothers, 1937. Tunstall, B., ed. The Byng Papers. London: Navy Records Society, 1930. Williams, E.N., ed. The Eighteenth Century Constitution, 1688-1815: Documents and Commentary. Cambridge: Cambridge University Press, 1965. Winton, Henry, ed. Select Cases from the Records of the Supreme Court of Newfoundland. St John's and London: Henry Winton and Baldwin & Cradock, 1829.

C

P U B L I S H E D BOOKS AND PAMPHLETS

Anon. The Case of John Collins, Esq., Governor of Newfoundland, January 21, 1711. London, 1711. Anon. Observations on the Present State of Newfoundland in Reference to its Courts of Justice, Local Government and Trade, in a letter addressed to the Right Honourable Henry Earl Bathurst. London: A. Hancock, 1823. Anon. A Report of Certain Proceedings of the Inhabitants of the Town of Saint John, in the Island of Newfoundland, with the view to obtain a REFORM of the LAWS, more particularly in the mode of their administration, and an INDEPENDENT LEGISLATURE. St John's: Lewis Ryan, 1821. Anon. The True Interest of Great-Britain, in Regard to the Trade and Government of Canada, Newfoundland, and the Coast of Labrador. London: J. Williams, 1767. Anspach, Lewis Amadeus. A History of the Island of Newfoundland. London: T. a n d j . Allman, 1819. Bristow, J. Brief Remarks on a Pamphlet, entitled "Arguments to Prove the Policy and Necessity of Granting to Newfoundland a Constitutional Government." Poole: Printed by Moore and Sydenham, 1828.

396 Bibliography of Primary Sources Carew, Bampfylde-Moore. The Life and Adventures of Bampyfylde-Moore Carew. Exon: Printed for Joseph Drew, 1745. Carson, William. "Distress in Newfoundland." Letter to the editor published in the Colonial Journal III (1817). - A Letter to the Members of Parliament of the United Kingdom of Great Britain and Ireland, on the Address of the Merchants and Inhabitants of St. John's in the Island of Newfoundland to the Prince Regent. Greenock: Printed by William Scott, 1812. - Reasons for Colonizing the Island of Newfoundland. Greenock: William Scott, 1813. Cartwright, George. A Journal of Transactions and Events During a Residence of Nearly Sixteen Years on the Coast of Labrador. 3 vols. Newark: Allen and Ridge, 1792. Cochrane, Lord. The Autobiography of a Seaman. 1861; reprinted, London: Constable, 1995 Douglass, William. A Summary, Historical and Political, of the First Planting, Progressive Improvements and Present State of the British Settlements in North America. 2 vols. London: R. Baldwin, 1755. Geare, Allen. Ebenezer: or, a Monument of Thankfulness. London: Printed for A. Bettesworth, 1708. Morris, Patrick. Arguments to Prove the Policy and Necessity of Granting to Newfoundland a Constitutional Government. London: Hunt & Clarke, 1828. - Observations on the Government, Trade, Fisheries, and Agriculture of Newfoundland. London: A. Hancock, 1824. - Remarks on the State of Society, Religion, Morals, and Education at Newfoundland. London: A. Hancock, 1827. Oldmixon, John. The British Empire in America. 2 vols. London: J. Nickolson, B. Tooke, 1708. Osborne, Thomas. A Collection of Voyages and Travels. London: T. Osborne, 1745. Ralfe, J. The Naval Biography of Great Britain: Consisting of Historical Memoirs of those Officers of the British Navy who Distinguished Themselves during the Reign of His Majesty George III. 1828; reprinted, Boston: Gregg Press, 1972. Reeves, John. History of the Government of the Island of Newfoundland. 1793; reprinted, New York: Johnson Reprint Corporation, 1967. Rogers, Robert. A Concise Account of North America. London: Printed for R. Rogers, 1765. Sheffield, Lord. Observations on the Manufactures, Trade and Present State of Ireland. London: J. Debrett, 1785.

Bibliography of Primary Sources 397 Thompson, Thomas. Considerations on the Trade to Newfoundland. London: Andrew Bell, 1711. Williams, Griffith. An Account of the Island of Newfoundland, with the Nature of its Trade, and Method of Carrying on the Fishery, with Reasons for the Great Decrease of that most Valuable Branch of Trade. London: Printed for T. Cole, 1765.

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Index

An italic f following a page reference indicates the presence of a figure, an italic m indicates a map, and an italic t indicates a table. aboriginal peoples. See Beothuk Acheson, T.W., 265 Adams, Thomas, 212 ad hoc meetings and committees, 104-5; customary basis of, 281; lower classes at, 274-5; as means of political representation, 142, 151, 179; public meetings of reform movement, 260, 267-8, 271, 272-3, 274-5; for raising taxes, 227 Admiralty, 42, 105-6, 196-7, 263 Admiralty Court, 41, 196 adultery, 195 Albright, Captain, 153 alcohol. See liquor Alexander, David, 246 Allen, David Grayson, 97 Althorp, Lord, 277 America, colonial: corporal punishment in, 229, 230; as distinct from other British colonies, 5-6; local

customs in, 16,167-8,286; and maritime culture, 247; press gangs in, 232; Royal Navy in, 146; traders from, 9; transportation or banishment to, 194, 223, 226, 357n22 American Department (of secretary of state), 320n3 American Revolution, 24,163, 165, 194, 223, 266, 357n22 Amherst, General, 144 Andrews, John, 251-3 Andrews, Jonathan, 47-9 Anquetil, Thomas, 56 Anson, Lord, 106 Anspach, Lewis Amadeus, 26,310n3; History of Newfoundland, 270 Anticosti, isle d', 148 army garrisons. See British Army A slop, Robert, 268 Atlantic crossing: convoy duties of squadrons, 41, 91,183-5; as decisive break, 158, 284; passage for

400 Index servants, 238, 243; poor weather conditions, 95; trans-Atlantic links of British Empire, 3, 65, 284 autumn assizes. See courts - St John's assizes Badford, Henry, 239 Bailyn, Bernard, 3 Balenden, Lord, 110, 111 Balfour, (Reverend) James, 95-6 Ball, Richard, 150 banishment. See transportation, deportation, and banishment Banks, Joseph, 130,163,164, 218 Bathurst, Lord, 264 Bay Bulls, 82,242, 321nl6; Irish convicts landed in, 174, 226; judicial district of, 128,150m, 295 Bay de Verde, 321nl6 Bayly, C.A., 282 Bayly, George, 169-70 Beattie, John, 196, 360n52, 360n54 Beauclerk, (Lord) Vere, 67, 70, 72, 77, 107, 320nlO Beckett, Thomas, 48 Bedford, Duke of, 106,107,117,118, 119 benefit of clergy, 126, 229 Benevolent Irish Society, 258,273 Bennett, Thomas, 271,274, 383nl07 Beothuk, 12-14,13, 90,148 Beothuk Institution, 13,14 Blake, John Garret, 145,150 Board of Trade, 46, 65; abolishment of, 352nl81; correspondence sent to, 356nl2; Fane's report to (1731), 102-3; Larkin's report to (1701), 34; petitions and reports sent to, 38, 41,42; and proposals to deport settlers, 42-3, 44, 66; reports on Newfoundland fishery: (1706), 34-5,

36-7; (1764), 160; report to Duke of Newcastle (1728), 66; and role of magistrates, 66, 86-7. See also British government Bolan, David, 234 Bonavista, 71m, 96,128,150m Bond, Mary, 201 Bonfoy, Governor, 192-3, 214, 356nll-12 Bouler, Captain, 46 Bowen, H.V., 3 Bowling, Benjamin, 268 Braddick, Michael, 6,287 Bradshaw, Francis, 342n30 Brand, Nicholas, 342n30 branding (burning in the hand), 223, 225f; and benefit of clergy, 126; for manslaughter, 119,126, 226, 334n61; as punishment for servant class, 209. See also punishment, noncapital breach of contract. See contracts Brewer, John, 6 Bridge, (Captain, Commodore) Jonathan, 34 Brigus, 275 Brine, John, 268 Bristol (England): London and Bristol Company, 29, 30; merchants of, 41, 65,85 British Army: executions of soldiers, 213; Fort Amherst, 165,181; Fort Townshend, 165,182,212; Fort William (St John's), 36; garrison at Placentia, 36, 66, 84, 95,147; garrison at St John's, 35-6,147,154-5,193, 220,228,231; Newfoundland Regiment, 165; soldiers present at executions, 213, 364nl09; surgeons with, 147 British Empire: 1763 as watershed,

Index 401 148; authoritarian administrations in, 168, 288; borderland settlements in, 6; colonial administration of, 352nl81; customary law in, 16, 59, 281; governors in, 115; Newfoundland vs. other colonies in, 5,16, 281, 285-6, 288; patterns of sentencing in, 229-30; reform movements in, 270; state authority vs. local customs in, 167-8; transAtlantic links in, 3, 65, 284; varied colonial models in, 5-6,16 British government: budget for government of Newfoundland, 167; policy on legal institutions in Newfoundland, 17-18,28, 86-7, 107; policy on representative government in Newfoundland, 128, 261, 273-4, 277, 278; policy on settlement in Newfoundland, 19, 20; policy on statutory law for Newfoundland, 59; reform politics in, 105-6, 107, 257, 273, 276, 385nl34; role in pardon process, 189,191; view of Newfoundland as seasonal fishing station, 4, 7-8, 31-2, 43-4,122,175, 186; Whig administration, 260, 273,279, 280, 385nl34. See also England; Parliament (of Britain) British North America, 168, 270, 286; Upper Canada, 168, 229-30, 259, 383nl05 Brock, John, 249 Brooking, Thomas, 265,268,273,274, 277-8, 379n50, 379n52 Brooks, Henry, 196 Brooks, Nathaniel, 82-3,150 Brooks, (Captain) William, 74-5 Brown, Captain, 145,146 Brown, Robert, 268, 381n76

Bryan, Cornelius, 196-7, 359n38, 365nl22 Buchan, (Lieutenant, Captain) David, 13,181f, 183-4,185 Buchanan, Archibald, 115,124,132, 174, 332n38 Buchanan, Thomas, 74, 82 Buffett, Thomas, 55 Bully, William and Sarah, 45 burglary and larceny: cases of, 2423, 247-8, 282; grand vs. petit larceny, 226; pardon rates for, 190t; receiving stolen goods, I90t, 200; whippings for, 229,230,24Qt, 2478; women convicted of, 200, 360n54 Burin, 52, 253-4,255,275 Butler, Philip, 259,260, 262 by-boat keepers, 9, 363n94. See also planters Byng, Governor, 328nl36 Byrn, John, 198 Byron, (Governor) John, 11,157,162, 238,239,247 Cadiz (Spain), 184 Calvert, Cecil (second Lord Baltimore), 30 Calvert, George (Lord Baltimore), 30 Cameron, Alexander, 211 Campbell, Governor and Vice-Admiral, 155,172, 242; pardons granted by, 194,195-6,204,212; and religious toleration, 236 Captain Crowe's Law, 37,128 Carbonear, 144,220,275, 321nl6, 384nl29 Carson, William: career of, 354n202, 376nl4; on early settlers, 261; historians' views of, 18-19, 256; on naval government, 4,142; pam-

402 Index phlets by, 258-9; as reform leader, 4,179,271,274-5,354n202, 383nl07; on representative government, 21,259,273; on rights of British subjects, 259,270,278 Carter, Robert, 14,56,150,235,247, 250-1 Carter, (Lieutenant) William, 181*, 184 Cartwright, (Lieutenant, Major) John, 13,153,157,241,245 ceremonies: for arrival of naval governor, 91,180-2; for imprisonment and executions, 193-4,199; for supreme court opening (1826), 263 Chamber of Commerce (of St John's), 265, 268,278,279,379n52 Chapman, (Lieutenant) John, 144 charter of incorporation, proposal for (1826), 268,269£, 379n52 children: illegitimate, 195; infanticide Church of England (Anglican Church): new church in St John's, 143; Society for the Propagation of the Gospel, 67,95,148 civil secretary, 165,198 class and social structure (of Newfoundland), 8-9,198-9; children, 195-6; as context for legal culture, 7-8, 65-6,283; English Protestant elite, 10,158,201,209,215,237,245, 249,251,253,257,268,284; families, 8,244,282; and judicial discretion, 208-12,220-1,247,283^; law as social power, 283-^1; rise of bourgeois (middle-class) culture, 8,258, 266,268,269*, 278,282; role in punishment decisions, 199,221,248, 253; and sectarianism, 237-9; social role of Royal Navy, 89,164,183;

and trial outcomes, 207-8,21 Of, 215,221. See also law - master and servant; paternalism; servants clerks, 208 Clinch, John, 251,342n30 Clinton, (Captain) George, 79-82, 152,320nlO, 326n99 Cochrane, (Captain) Thomas, 263^4, 265, 271-2,274,277,286,383nl01 Coffin, I., 240-1 Coke, D'Ewes: and George Bayly, 168-70; as a magistrate, 147,148, 174,342n30,342n33,343n48; postmortem performed by, 202; Prowse's description of, 342n33 Cole, Edward, 245 Collins, (Governor) John, 36,42 Colonial Office, 257,264; Cochrane's influence in, 271,274,277; establishment of, 352nl81; policy on Newfoundland legislature, 186, 261,273^, 277; James Stephen in, 264, 277, 378n45 Colonial Office Papers, 289-92,293 commissions of the peace, 69-70, 173-4; criminal matters in, 73,125; by district, 150m; and King William's Act, 69-70, 77, 84; manuals for, 68-9,321nl6; text of, 99-102. See also justices of the peace commodore's clerk, 107,133,165 Conception Bay, 29, 70,116,217,25960,275 Conception Bay Mercury, 275 constables, 71m, 234,242,336n99 contempt of court, 234,259-60 contracts, 113,160-1,238,243; breach of contract and desertion, 12,162, 238,240*, 243,244-5, 249. See also shipping papers

Index 403 contra formam statuti, 35 Cook, James, 148,163 Corbett, Thomas, 93 coroners, 23 coroners' juries, 343n48 courthouses, 119,121,227 courts: contempt of court, 234, 25960; first in Newfoundland, 45; organization of, 40/, 81/, 120/; as source of law, 126. See also trials - St John's assizes (court of oyer and terminer), 58,117-21; commission of oyer and terminer for, 93-4,122, 125,138-9; commissioners (of oyer and terminer) at, 114,126,147,173, 281; commissioners' report to governor, 189,198, 203-4, 205-6; court costs at, 114, 224-5; customs of, 119,121; establishment of, 93-4, 104,117-21; governor's instructions concerning, 122,125,134-5; jurisdiction of, 118-19,122; lack of statutory basis for, 118,122; Lee's proposal for, 93—4; pardons and reprieves at, 188,189-96; replaced by supreme court (1792), 178,187, 219; restricted to serious felonies, 58, 224, 226; as a supreme court, 153; verdicts and sentences in, 189-96, 223, 225-9, 225t - circuit, 153, 263 - common pleas, 174,176-7,178 - district/surrogate, 109-14,149-55, 232-4; abolishment of (1824), 257, 263; beginnings and establishment of, 16, 33, 80, 88,104,112, 133; cases heard in, I52t; ceremony of, 154; as a circuit system, 153, 263; civilians appointed to, 111, 114,178,180; contemporary

description of, 153—4; as court of common pleas, 174; customary basis of, 281; district minute books, 145-6,149,208,292-5,297; example of, 149,151; fishing admirals' role in, 50,112; and fishing season, 113-14; importance of, 155; jurisdiction of, 178; legal fees for, 114; legal records for, 34,80,104,145-6, 149,208,230-1,292-5; names for, 112; noncapital sentences in, 223, 232-4,233f; preferences for, 224-5; reform movement's attacks on, 262; statutory basis for, 58,110, 171,172-3; surrogate's commissions, 110-12,139^0,150m; use of warships for, 109-10,114,144,149, 162-3,166m; during wartime, 144; year-round operation of, 163—4, 180. See also naval (junior) officers - governor's, 104,114-17,153,281; lack of statutory basis for, 78,81-2, 114-15,133,171-3; replaced by court of common pleas, 174; use for serious cases, 88. See also governor^) of Newfoundland - naval - naval, 198 - supreme: created by 1792 Judicature Act, 178,187,219; governor's and assize courts as, 153; Lundrigan and Butler cases at, 260; renewed by 1825 Royal Charter, 263 - vice-admiralty, 93,162,243, 347n90, 353nl95 Cox, John, 194-5 craftsmen and artisans, 9,268,269t Cramer, Charles, 342n30 Crauford, Captain, 91 Cressy, David, 3

404 Index Crowe, (Captain) Josias, 37,128,152 Cummings, Archibald, 41 Cunningham, James, 212 Cupids (Conception Bay), 29 Curtice, Ann, 268 custom(s), local, 14-17; ad hoc meetings and committees, 104-5,128, 142,151,179,227,281; in assize court, 119,121; breaking price for fish, 113; in colonial America, 16, 167-8,286; custom of the country, xiv-xv, 14-17, 283; ducking (dunking), 33,200; and English law, 66, 122-8,159,200-1,283,346n90; proof of, 346n90; role in state formation, 281; as source of law, 22, 123,283; working up, 250. See also law - customary Dalton, Lawrence, 194-5 Dameral, Jane, 268 Dana, Richard Henry, 247 Darrigan, Michael, 365nl22 Dartmouth (Devon), 39, 65,185 Dawe, William, 260 debt: debt slavery, 372n73; legal regulation of, 159,160-1,162; loss of house and assets for, 259-60; and master-servant relations, 159,1601; planters' cycle of, 9; truck system, 5,161,372n73 Delaney, Ann, 207 Delaney, John, 204-8 Demasduit (Beothuk woman), 13 Dening, Greg, 230,248 deportation. See transportation, deportation, and banishment desertion. See contracts Devereaux, Simon, 167 Devonshire (England), 9,172

dieters, 11,161,162,238 Dingle, John, 342n30 Disney, Samuel, 209, 211 district courts. See courts - district/ surrogate district minute books, 145-6,149, 208, 292-5,297 district system, 70,128,149-55,1657,321n22; maps of, 71m, 150m, 166m Dood, Thomas, 147,342n30 Dorrill, (Governor) Richard, 10-11, 217,218 Dorset (England), 9 Doyle, Patrick, 271,274, 381n78, 383nl07 Drake, (Captain, Governor) Francis William: and assize court, 118-19, 121-2,138,190; as governor, 107, 118-19,121-2; and surrogate courts, 109,117; view of Irish Catholics, 10,215 Dublin, 351nl67 ducking (dunking), 33, 200 Duckworth, (Admiral, Governor) John, 13,179 Duff, (Governor) Robert, 11,211, 225-6,231,238 Dullahanty, Roger, 373n90 Dundas, Henry, 196, 358n38 Dunscombe, John, 268,381n76 Durell, (Captain) Thomas, 164 Durkheim, Emile, 198 duties. See taxation and duties Edgecombe, Robert, 150,151 Edwards, (Governor) Richard, 165, 202,332n32; governorship of, 1434; and housing regulation, 124; and Keen murder case, 194,

Index 405 357nl4; and taxation, 143,151, 170-1 Elford, Major, 154-5 Elliott, (Governor) John, 56,165; and Delaney case, 205-8; and housing regulation, 124; on Newfoundland, 155; and Prince William Henry, 237; proposal for prisons, 167, 234 England: capital punishment in, 188, 200, 229, 368nl, 369nl9; pardon process in, 355n3; press gangs in, 232. See also British government; West Country executions (hangings), 121-2,212-15; and benefit of clergy, 126,229; bodies of murderers, 214,219,365nll9; British government approval required for, 119; contemporary account of, 213; crimes punished by, 188, 206; as example or deterrent, 214-15, 284; gallows and scaffolds for, 197,199, 212, 214-15, 364nl06; governors' decisions on, 191,196,197-8, 203-4; hangmen, 213, 214; performed in Newfoundland, 94,121-2,191-2; petitions for clemency, 198; as political punishment, 188; presence of soldiers at, 213,364nl09; as public events, 193, 212, 213, 214; rate vs. death sentences, 368nl, 369nl9; in Royal Navy, 198; time limits for, 197-8; warrants for, 189, 213. See also punishment, capital Exeter (England), 170,171 Falkingham, (Captain, Governor) Edward, 88, 91, 92 Falkland, (Lieutenant) Robert, 110

family: family fisheries, 148,244,282; as social unit, 8 Fane, Francis, 72, 73, 78; report by (1731), 102-3 farmers, 8 Fermeuse, 53, 54, 57 Ferryland, 144,294, 321nl6; affray in (1788), 219, 224,233t, 234-5,255, 283; Calvert's colony at, 30; cases in, 248,249-51; court in 1704 at, 34; court sessions in, 234; fishing admirals' courts in, 53^4, 56; judicial district of, 7\m, 150m; naval cruises to, 185; prison in, 72,76,92, 234 Fielding, Henry, 105 Fielding, William, 190-1,356nlO, 362n87 fines and/or court costs, 217,223, 225t, 227-8,233-4, 233f; and debt, 224; legal fees, 77t, 114, 224-5; as punishment for elite classes, 209, 249,251,253; as punishment for groups, 227; as punishment for servants, 250, 253; as punishment for women, 234; sentences for Ferryland affray, 224,227,233f, 234; as source of public revenue, 151, 227, 233, 255; with threat of whipping, 248; in Upper Canada, 229. See also punishment, noncapital Fingard, Judith, 246 fire fighting, 183 Fischer, David Hackett, 7 fish cullers, 9 fishery, cod, 113-14; by-boat keepers, 9, 363n94; crew structure of, 10; family fisheries, 148, 244,282; fish prices, 9,11-12,113,127; grading of cured fish, 9; law of wages and

406 Index lien, 126,148,159,161,162,243, 331nl8; naval convoys for, 41,91, 183-5; Newfoundland as seasonal station for, 4, 7-8,31-2,43^, 122, 175,186; and property law, 51t, 124; servants as labour force for, 8, 9-11, 208; and settlement, 8; West Country interests in, 32, 65,85-7, 94; women's role in, 9, 201-2,270 fishery, seal, 180 fishing admirals, xv, 26-60,5lt, 74-5, 132; careers of, 38-9; courts of, 27, 47-9, 50,53-6, 74,152,172; decreasing influence of, 58-9,112, 132,178-9; descriptions of, 26-7, 50,56,58,59,130,310n2^, 317n99, 319nl21,353nl98; limited legal activities of, 39,50,66; pamphlets concerning, 131; relationship with magistrates, 23, 50,69-70, 74-6, 152; relationship with naval government, 31,49,50,54-6, 58,81-2, 130-2; role in administration of law, 40/, 81/, 120/; as seasonal settlers, 39; statutory jurisdiction of (under King William's Act), 27-8, 30-1,51 i, 52, 57-8, 70, 75-9,97, 102-3,131 fish prices, 127 Fitzgibbon, John, 174,176, 351nl67 Fling, Robert, 202-3 flogging. See whipping(s) Fogo Island, 167 Forbes, (Sir) Francis, 258 Ford, Thomas, 44 forgery, 188,190f Fort Amherst, 165,181 Fort Townshend (St John's), 165,182, 212 Fortune Bay, 167

Fort William (St John's), 36 Foucault, Michel, 168 Fox-Genovese, Elizabeth, 8 France and French army: alleged Irish collusion with, 215, 217-18; capture of outports, 144-5; capture of St John's, 144,217,218,221,232; Lester accused of colluding with, 145,146,341n20 Free, Francis, 56 freedom of speech, 259 French fishing operations, 149,241-2 French Revolution, 24,258 French Shore, 148 Gale, William, 231 Gambier, (Governor) James, 179 gaols, 90; escapes from, 92,121, 218; lack of, 222,254; paid for by fines, 151,227; paid for by taxation, 70, 72-4,76,92-3; poor conditions in, 121-2. See also imprisonment Gardner, Dr, 131 Garland, George, 127,150 Gatrell, V.A.C., 197,214 gender: and convictions, 360n55; of population, 202t; and women's roles, 201, 270 Genovese, Eugene, 8 George II, king of England, 106 George III, king of England, 236 Germain, (Lord) George, 195 Gibraltar, 184 Gill, Michael, 150 Glascock, (Captain) William, 153-4 Goderich, Lord, 273,278 Goold, John, 249 Gossard, Jarvis, 342n30 Gosse, Phillip Henry, 220 Gould, Eliga, 3

Index 407 Government House (in Fort Townshend), 165,182,183 governor(s) of Newfoundland civilian: appointment of, 68, 263; John Collins, 36; council appointed by, 263, 264 governor(s) of Newfoundland naval: absence of, 95,143; accountability to British government, 287; appointment of, 68,106,263; arrival ceremonies for, 91,180-2; civil secretary for, 165,198; commissions for, 67-8, 79, 94,118,125, 135-8,173; contemporary description of, 154-5; control of local press, 258; as de facto chief justice, 116,127,146,152; dual role as commodore, 66, 67, 106-7, 320nlO; duties in England, 156; duties in Newfoundland, 91; establishment of, 66-8; execution decisions of, 191,196,197-8, 203-4; flagships of, 40,181-2,193; Government House residence for, 165,182,183; instructions for, 87, 94,118-19,125, 134-6; judiciary discretion of, 2201, 223; as magistrates, 78,172; and pardon process, 188, 220-1; powers and jurisdiction of, 78, 81-2, 146,160,172,173-4, 264, 286-7; salary of, 114; as a valued position, 106. See also courts - governor's Graham, Aaron, 165,171,172,173-4, 176 Graves, (Captain, Admiral, Governor) Thomas, 144,145,154, 217, 232, 341 n20 Great St Lawrence district, 167 Greene, Jack, 3, 5-6,16, 286 Greenwood, F. Murray, 287

Greer, Allan, 4, 286 Grenville, William, 174-5 Grey, Charles, 2nd Earl Grey, 277, 279, 385nl34 Guy, John, 29 Haddock, Jonathan, 150 Haire, Alexander, 379n47 Halifax (Nova Scotia), 168,200, 220 Hallahan, Lawrence, 194-5, 357n26, 365nl22 Halluran, Mathew, 213, 216, 365nl22 Hamilton, (Admiral, Governor) Charles, 153,260, 261 Hancock, David, 3, 287-8 hanging. See executions Harbour Grace: French capture of, 144; judicial district of, 71m, 127, 128,150m, 174, 234, 295; reformers in, 383nl07, 384nl29; sectarian violence in, 220 Harbour Main (Conception Bay), 217 Hardy, (Captain, Governor) Charles, 95 Harris, John, 150 Harris, Leslie: Newfoundland and Labrador, 18-19 Harris, Samuel, 69,127,145,147, 336nl01, 341n26, 342n30 Hawkins, Dennis, 193 Hawson, Gregory, 56 Hay, Captain, 150 Hay, R.W., 273 Hern, John, 170 Hill, Emily, 268 Hill, Nathaniel, 269 historiography: of Newfoundland, 45,17-22, 27, 256-7, 280-2; of transAtlantic British Empire, 3, 284

408 Index Hobart, Robert, 176 Hobsbawm, Eric, 16,262 Hogan, Daniel, 362n87 Hogan, John, 231 Hogan, Timothy, 381n78 Holdernesse, Robert D'Arcy, fourth Earl, 191 Holdsworth, Arthur, 33, 38-9 Holland, Lord, 277 Holloway, (Admiral, Governor) John, 181*, 183 Home Office, 352nl81 homicide. See murder and homicide Howick, Lord, 273,276,277-8, 385nl35 Hoyles, Newman, 268,379n52, 381n76 Hughes, (Lieutenant) Richard, 80 Hume, Joseph, 276-7,279, 384nl32, 385nl34 Huskisson, William, 265 Hutchens, Robert, 317n98 Hutchings, Richard, 172-3,178 impressment and press gangs, 182, 213, 219,231-2 imprisonment: for desertion, 243; legislation concerning, 232; as a noncapital punishment, 223,231; pending pardons, 188,190,192-3; pending transportation, 223; release of prisoners (1826), 263; sentences in district courts, 233f. See also gaols Ireland, 284; deportations to, 229, 234; Irish convicts controversy, 129,174-6,226; Leinster and Munster, 10,215,234-5,245; Protestant politicians in, 351nl67; reform politics in, 257; United Irish Rising,

220,221; Waterford, 201,215,284; Whiteboys, 215 Irish language, 10,208, 215 Irish Roman Catholics: alleged collusion with French, 215,217-18; alleged sedition among, 188-9, 284; Benevolent Irish Society, 258, 273; as distinct society, 115; factions among, 215,234-5; as Liberals, 220; in middle class, 260; as perceived threat, 121,201,216,238, 245,253-4,284; persecution of, 1011,189,284; population of, 215, 216t, 376n9; rate of trials and executions for, 215-19,221; role in reform movement, 257,260,268; servants as, 10-11; as soldiers, 216, 220; in St John's, 376n9; women, 201. See also Roman Catholic Church Isaac, Rhys, 199,229 Jackson, William, 150 Jacobite Rebellion (1745), 217 Jacobitism, 10,215 Jago, John, 45 James I, king of England, 29 Johnson, John, 249 Johnson, Samuel, 105 Jones, (Captain) James Howell, 250 Jones, W, 242-3 judicial districts. See district system juries: charges to, 207; coroners', 343n48; custom of withdrawing, 119,121; grand, 151,227; of women, 203 justices of the peace: appointment of, 46-7, 70; attacks on, 168-70,227, 253^; cases handled by, 248-53; collection of duties and taxes, 128;

Index 409 compared to English magistrates, 79,127; difficulties encountered by, 82, 87, 96,168-70, 241; establishment of, 66-8, 96; governors acting as, 78; guidebooks for, 69; jurisdiction of, 69-70, 73, 74-6, 77, 115,127; permanent full-time, 148; relationship with fishing admirals, 50, 70, 74-6, 79,152; relationship with naval surrogates, 88, 151-2,153,184,222-3, 281-2; sentencing options of, 223,232-4, 233f; surgeons as, 23,147-8,283; in surrogate courts, 112, 251; as winter justices, 74, 75, 88. See also commissions of the peace Kane, James, 248 Keen, William: calls for legal reform, 44, 46, 76,117, 321n20; on fishing admirals' courts, 44; and Governor Rodney, 117,344n59; as magistrate, 42, 70, 85, 92,150,231; and Moors affidavit, 85-6, 88; murder of, 1924,199,201, 215-17, 221,364nl06; and vice-admiralty court, 93 Kempthorn, Commodore, 42 Kent, Bridget, 201 Kent, John, 272, 274, 382n90 Kielly, Edward, 381n75 Kimber and Company, 47 King, (Governor) Richard, 52 King's schooners, 110,145,149 King William's Act (1699), 30-2,33-8; and assize court, 94,118,122; as codification of British policy on Newfoundland, 19, 31; and commissions of the peace, 69-70,77,84; enforcement of, 19, 28, 34, 35, 58, 109; jurisdiction of fishing admi-

rals under, 27-8,30-1,511,52,57-8, 70,75-9,97,102-3,131; limitations of, 20, 32-3, 42, 58,102,118,132; magistrates' copies of, 69; naval commanders as appellate judges under, 31,32,49, 57, 68,115,171; and prison tax, 73; 1708 proclamation on, 35,36; property provisions concerning fishery, 47,49, 54,124, 172; provisions for servants, 161; punishments under, 35,36,78,125; repeal of, 132,263; text of, 60-3. See also law - specific statutes Kirke, (Sir) David, 30 Kitchin, Thomas, 12 Kneeves, Lawrence, 119, 334n61 Knight, (Captain) Jonathan, 109,126 Knowlan, Patrick, 229 Labouchere, Henry, 277, 385nl35 Labrador, 148,184 Lamley, Lawrence, 193 Landsman, Ned, 3 Langbein, John, 199 Langman, (Reverend) Edward, 95, 150 Laquer, Thomas, 214 larceny. See burglary and larceny Larkin, George, 33-4,152 law: creation of, 126,158-62; discretionary application of, 188,197-9, 220, 223,247-8,283-4; as expression of social power, 283-4; sources of, 22,97,122-5; unwritten, 89 - case, 97 - common, 15, 22, 97; adaptation of, 46,286; and customary law, 108, 133; role in state formation, 281; role of, 57,59

410 Index criminal: link with master-servant law, 162, 244-5, 282; and social class, 197; sources of, 125-6 - customary, 15-16, 37,57-9,59, 126-7; and common law, 108,133; historiography of, 21; and Letterbook system, 108; as source of master-servant law, 122-3; and state formation, 15,16,281; statutory challenge to (1780s), 170-3. See also custom(s), local - English, 72^4; concerning executions, 214-15; and local customs, 66,122-8,159, 200-1,283,346n90; proof of a custom, 346n90; reception of, 66, 78, 87, 96-7,105,122-8; use in first St John's court, 46 - folk, 15,307n50 - maritime, 89, 252 - martial, 220 - master and servant, 511,52-3,2435,244£; codified in Palliser's Act, 53, 58,123,124,148,162, 208, 238, 243; and judiciary discretion, 247, 283-4; jurisdiction over, 53,162, 347n90; law of wages and lien, 122, 126,148,159,161,162,243,331nl8; link with criminal law, 162, 244-5, 282; as paternalistic, 245-8, 249; sources of, 122-3,159. See also class and social structure; servants - property: cases concerning, 46,511, 53-4; enforcement of, 124-5,188, 224; as secondary concern, 223, 282; sources of, 123-5; title in, 1234 - statutory: and British colonial policy, 282,287; as historical evidence, 282; as source of master-servant law, 122-3; and state formation, 281

-

- written/unwritten, 5,15,283, 307n50 - specific statutes: Act for the Encouragement of the Trade to America (1708), 232; Articles of War, 89,328nll3; Burke's Act (1782), 352nl81; Catholic Relief Act (1829), 255,268; Colonial Tax Repeal Act (1778), 128; Declaratory Act (1778), 266-7,271,380n63; Disorderly Houses Act (1752), 105; Dockyards Bill (1751), 105,106; Fisheries Act (1824), 378n34; Infanticide Act (1624), 195; Judicature Act (1791), 177; Judicature Act (1792), 50,59,178,353nl95; Judicature Act (1824), 263,264, 271, 378n34; Marriage Act (1824), 378n34; Murder Act (1752), 105, 219,365nll9; Navy Act (1749), 328nll3; Palliser's Act (1775), 53, 58,123,124,148,162,208,238,243; penal laws, 83, 217, 257, 260; Reform Bill (1832), 273,276, 385nl34; Stamp Act (1765), 160; Test Acts (1673 and 1714), 83; Trade and Navigation Acts, 69; Vagrancy Act (1744), 162, 238. See also King William's Act Lawry, (Lieutenant) Richard, 213, 219,221 Le Breton, Peter, 206 Lee, Governor, 87, 88,91,92-3,94, 118,143 Lee, (Lieutenant) Thomas, 184-5 Leeward Islands station, 198 legal costs and fees, 77t, 114,224-5 legal culture: of Newfoundland, 7-8, 65-6, 283, 287; of Royal Navy, 198

Index 411 legal records, 108-9; of assize courts, 121, 289-92; of corporal punishments, 145, 230-2, 231, 293; of district/surrogate courts, 34, 80,104, 145-6,149, 208, 230-1, 292-5; of fishing admirals' courts, 27-8, 4953,57, 59, 295-7; kept by civil secretary, 165; kept by commodore's clerk, 107,133,165; Letterbook system, 80,133,145, 289 legal system and structure: administration of law, 40/, 81/, 120/; administrative role of Royal Navy, 23, 39-43, 80-1, 88-90,97-8, 222-3, 285; chronology of, 21-2; Palliser's reorganization of, 149-55; Rodney's reform of, 104,107-9; threetiered judiciary, 153 legislative councils and assemblies: ad hoc meetings as, 104,151,179, 185-6, 227, 281; appointed by governor, 263, 264; British policy on Newfoundland government, 128, 261, 273-4, 277, 278; convened by Crowe (1711), 37,128; council vs. assembly, 272; establishment of, 278; sectarian struggle following, 220, 284; grand jury as, 151, 227; lack of, 126, 222, 255, 286; merchants' view of, 158,186, 227; Parliament debates on Newfoundland government, 141; Reeves's proposal for, 177-8; George Robinson's support for, 274, 276 Leinster (Ireland), 10, 215, 234-5, 245 Lemisch, Jesse, 232 Lester, Benjamin: accused of colluding with French, 145,146, 341n20; cases involving, 53,153, 200, 245, 249; on controlling servants, 241-2;

shipbuilding contract from Royal Navy, 162,167; ties with England, 156 Lester, Isaac, 157 Lester family, 9 Letterbook system (Colonial Secretary's Letterbook), 80,108-9,133, 289-92,293; contents of, 108,121, 145, 295,296-7; importance of, 108-9,133,149 lex loci/scripta, 97, 283 Lilley, William, 209,227,342n30 Linebaugh, Peter, 3,199 liquor: drunkenness, 45, 236, 240t, 249; purchased with wage advances, 12,161; regulation of, 31, 82, 238; theft of, 242-3 Little St Lawrence, 236 Lloyd, (Captain) Thomas, 35-6 Locke, John, 45 London (England): colonial politics in, 273-8; 1830 delegation in, 273; merchants activities in, 156-8 London and Bristol Company, 29, 30 London Exchange, 156,157 Lounsbury, Ralph, 20, 217, 325n90, 339n8 Lundrigan, James, 259-60, 262, 278, 384nl26 Lundrigan, Patrick, 373n90 Lundrigan, Sarah, 259-60 Lundrige, Captain, 317n98 Mackenzie, William Lyon, 383nl05 Mackintosh, (Sir) James, 240,260-1 Magdalen Islands, 148 magistrates. See justices of the peace Malloney, John, 209, 227-8 maps (of Newfoundland), 71m, 150m, 166m; of coastal waters, 91;

412 Index Cook's nautical survey, 148,163; by Kitchin (1765), 12 maritime culture, 246-7 maritime law, 252 martial law, 220 Martin, William, 209,365nl22 masters: authority aboard ship, 2512; and maritime law, 252; paternalistic authority of, 246-8,249; population of, 202f; relationship with servants, 11-12,246; use of legal system to discipline servants, 208, 223^, 242-5,255,282,285; verdicts in master-servant cases, 244f Matthews, Ann, 268 Matthews, Keith, 19,27,160,175,270 Matthews, William, 47 McBride, James, 268 McCalman, Mary Ann, 268 McCarthy, Anastasia, 269 McClure, Alexander, 54 McCusker, John, 4 McDonald, Paul, 193 McEwen, Alexander, 123,125 McGrath, Daniel, 14 McGrath, Michael, 169-70 McGuire, Edmund, 213,216,365nl22 McLean, Elizabeth, 268 McLeod, (Captain) Donald, 181* McLintock, A.H., 27, 256; Establishment of Constitutional Government in Newfoundland, 18 Menard, Russell, 4 mental illness, 209,212 mercantile agents, 208,363n94 Mercantile Journal, 185,259 merchants: of Bristol, 41,65,85; Chamber of Commerce, 265,268, 278,279,379n52; of Dartmouth, 65; economic interests of, 258; extrale-

gal proceedings organized by, 44, 45; initial opposition to reform movement, 278; opposition to court of common pleas, 176; opposition to duties and taxation, 93, 129-30,227,265-6,272; of Poole, 9, 65,85,271,276; relationship with magistrates, 168-80,241; relationship with naval officers, 146,153; reluctance to serve as jurors, 151, 343n48; role in local government, 129,147,185-6; role in reform movement, 130,257-9,264,268; social position of, 9,208; Society of Merchants, 258; ties with England, 156-8,160,284; West Country, 9, 18,32, 65, 85-7,94,98,156-8,176, 237 mercy, 198-9,212, 283; and paternalism, 248,249,253 Merrifield, Esther, 218 middle class: absence of, 8; political participation of, 268, 269t; rise of bourgeois culture, 258,266,278, 282 Milbanke, (Admiral, Governor) Mark, 129, 287; and Bryan case, 196-7, 358n38; and Irish convicts controversy, 173-4,176; and judiciary crisis (1780s), 171,173,176-7; policy regarding Catholics, 219; report by (1789), 16,110, 111 militia, local, 143 Miller, Robert, 117 Mills, John, 342n30 missionaries: descriptions of Newfoundland, 95-6; Moravian, in Labrador, 148; Society for the Propagation of the Gospel, 67,95,148 Mitchell, (Captain) John, 35

Index 413 Montagu, (Admiral, Governor) John, 68,194-6, 201,227,357n23, 357n26 Moody, Eleanor, 201 Moody, (Lieutenant, Captain) John, 35, 36, 89, 314n46 Moody, John (servant), 193 Moor, Matthew, 242-3 Moores, Jonah, 200 Moors, Green, 169-70 Moors, John, 85-6 Morris, Patrick: on fishing admirals, 26, 310n2; historians' views of, 1819, 256; on naval government, 142; on oppression of Newfoundland, 260,261,266, 278; as reform leader, 4, 21, 274, 275; on women in the fishery, 202, 270 Muddle, Richard Henry, 18U, 184 Munhall, John, 193 Munster (Ireland), 10, 215, 234-5 murder and homicide: bodies of murderers, 214, 219, 365nll9; as a capital crime, 188; Delaney case, 204-8; on the high seas, 196-7; infanticide, 195-6; of William Keen, 192-4,199, 201, 215-17, 221, 364nl06; manslaughter, 119,126, 228, 334n61; Murder Act, 105, 219, 365nll9; pardon rates for, I90t; post-mortem evidence for, 202-3, 205; in self-defence, 211; surgeons' investigation of, 23, 76 Murphy, James, 56 Murphy, Patrick, 365nl22 Muskerry, Lord (Governor), 91,92 Muskitta, 79-80 nationalism, 17-19, 261-3, 265 nativism, 270-1, 278 naval commodore, 35-6, 46; commo-

dore's clerk, 107,133,165; dual role as governor, 66, 67,107-8, 320nlO. See also Newfoundland squadron naval government, 281-8; boundaries set by, 282; contemporary descriptions of, 141-2,154-5; fall of, 256-79; historians' views of, 142,256-7,265,280; under Judicature Acts, 178-9,263; reformers' attacks on, 261,264-5, 284-5; as representative of British majesty and power, 90,180,181,282; under Royal Charter of 1825,263^. See also Royal Navy naval governors (of Newfoundland). See governor(s) of Newfoundland - naval naval (junior) officers: relationship with magistrates, 151-2,151-3, 153,222-3,251,281-2; relationship with merchants, 146,153; social position of, 89,183; as surrogate judges, 88-90,109-12,149-55,1723,178, 262, 324n77; year-round presence of, 163. See also courts district/surrogate Neal, David, 230 New Brunswick, 269 Newcastle, Duke of, 31,66,74,77,84, 87, 320n3, 326n99 New England. See America, colonial Newfoundland, views of: as a colony, 31,378n37; as a failed society, 5, 280; as a frontier society, 20; as a maritime culture, 246-7; as seasonal fishing station, 4, 7-8, 31-2, 43-4,122,175,186 Newfoundlander, 259, 267,379n60, 380n61

414 Index Newfoundland Regiment, 165 Newfoundland squadron, 180-5; ceremonies and customs of, 91,180-2; convoy duties, 41, 91,183-5; firefighting activities, 183; flagships of, 40,181-2,193; guard boat routine, 182-3; gun, drum, and bell signals of, 183; ships in, 40,68,90-1,162-3, 166m, 167, ISlt; winter presence of, 163-4,184-5; year-round presence of, 163-4,180. See also naval commodore; Royal Navy New Perlican, 96 New South Wales, 230 newspaper press (in Newfoundland): coverage of reform debates, 266-7,272; lack of, 222; role in reform movement, 257,259,278, 284-5; publications: Conception Bay Mercury, 275; Mercantile Journal, 185,259; Newfoundlander, 259,267, 379n60,380n61; Public Ledger, 259, 264, 267, 271, 272, 273, 379n47, 379n60,381n76,385nl43; Royal Gazette, 258,272, 381n75 Nichols, (Captain) Henry, 172 Noble, John, 55 Noddy, Patrick, 365nl22 Norris, Jonathan, 48 Notre Dame Bay, 12 Nova Scotia: British military in, 6, 168; English law in, 97; executions in, 188,229,368nl, 369nl9; expulsion of Acadians from, 11,217; governor of, 190,385nl39; Halifax, 168, 200,220,229; pardons in, 188, 190,355n3; proposals to deport Newfoundland settlers to, 42-3, 66; representative assembly in, 5, 97, 385nl39; whippings in, 200

oath of allegiance, 10,121, 215 O'Brien, Laurence, 381n78 O'Connell, Daniel, 277 O'Donel, (Bishop) James Louis, 213, 219,235-6 Ogden, Jonathan, 147,174,342n30 Oldmixon, John, 32 Old Perlican, 169,275,321nl6 Oliver, Peter, 229-30 Olson, Alison, 3 Orchard, William, 55 Osborne, (Captain, Governor) Henry, 69-70, 72-8, 79-80, 85 outports: Banks's description of, 164; calls for permanent magistry in, 41-2; courts of common pleas in, 174; dangers of coastal waters, 91-2,96,110,113,163; French capture of, 144-5; housing regulation in, 125; judicial districts for, 70; lack of land access to, 112-13; lack of winter justice, 42,113; missionaries sent to, 95-6; naval cruises to, 40, 80,90,91-2, 93,144,184-5; naval presence during winter, 184; navigation maps for, 148,163; role in reform movement, 275-6; surgeons in, 147-8; surrogate courts in, 58, 80, 88,144,324n77. See also specific communities (Ferryland, Harbour Grace, Trinity Bay, etc.) Pack, Robert, 275 Pakenham, Captain, 48-9 Palliser, (Governor) Hugh, 131,1489,158-62; and the Beothuk, 13; decrees of, 11,160-1,238; on fishing admirals, 131; historians' views of, 148; and Benjamin Lester,

Index 415 153,157; Palliser's Act, 53, 58,123, 124,148,162,208, 238, 243 Palmer, Bryan, 246 pamphlets, 262, 266, 284-5, 379n60 pardons and pardon process, 189-99, 192/; on basis of trial irregularities, 191, 203; effect of trials on, 204-8; free pardons, 189,190t; governors' responsibility for, 188,194-7; imprisonment during, 188,190, 192-3; lack of consistency in, 191; with punishment, 189,191-2; rate of pardons, 189,190t, 355n3; role of class in, 207-8; role of mercy in, 198-9; selection for, 197-9; time limits for, 197-8; uncertainty concerning, 191,196; for women, 2023. See also reprieve(s) Parliament (of Britain): committees of, 105-6, 271; debates on Newfoundland legislature, 141, 257, 260, 265, 274,275,276-7, 279; debates on Reform Bill, 273, 276, 385nl34; 1830 delegation to, 273; House of Commons, 157, 240, 260; House of Lords, 34,105; merchants interest in, 65,157. See also British government Parry, (Captain) William, 93 Parsons, Richard, 242-3 Pastore, Ralph, 12 paternalism, 245-9, 253, 254. See also class and social structure patriarchy, 269-70 Pelham, Henry, 105 Pellew, (Captain) Edward (later Viscount Exmouth), 172-3,234,237 Penny, Margaret, 200, 201 Perceval, Captain, 150 petitions: against charter of incorpo-

ration (1826), 268,269t, 379n52, 381n80; for clemency regarding executions, 198; data contained in, 258; against import duty (1827), 265; for a legislative assembly, 267-9,271,273,381n80; on Lundrigan and Butler cases, 260, 384nl26; as means of political representation, 142,151; from Society of Merchants, 258 Petty Harbour, 44, 81; Irish convicts landed in, 174,226 Phelan, Patrick, 206,207 Phillips, James, 204 Phillips, Jim, 6,97,360n55 Phillips, John (high sheriff), 170 Phillips, John (pirate), 43 Phillips, John (publican), 201 piracy, 43-4 Pitt, William ('the Younger'), 174 Pitts, Captain, 228 Placentia, 321nl6; army garrison at, 36, 66, 84, 95,147; under governor's jurisdiction, 68; judicial district of, 71m, 128,150m; magistrates in, 74-5, 82; Mass celebrated in, 236; Protestant church in, 237; sectarian violence in, 236; surrogate courts in, 144,149,151, 155,236 planters, 7-9; debt cycle of, 9; and growth of legal culture, 7-8; housing regulations, 124-5; hunting and trapping, 13; and law of real property, 125; legal status of, 32; opposition to taxation, 227; population of, 8, 95; proposals to deport, 42-3,44, 66; relationship with magistrates, 168-80; social position of, 9, 208, 363n94; tempo-

416 Index rary vs. permanent settlers, 8,238; ties with England, 284; and view of Newfoundland as seasonal fishing station, 4, 7-8,31-2,43-4,122, 175,186. See also by-boat keepers Playters, Lionel, 117 political parties, 220 political patronage, 106 Poole (Dorset), 185,284; merchants of, 65,85,271,276; Newfoundland as plantation of, 266 population: of Beothuk, 12; by gender and status, 202t; of Irish Catholics, 215,2.161,376n9; by religion, 216t; servants as majority, 199; of settlers, 8,95,376n9; summer vs. winter, 113; of women, 201,202f Port de Grave, 275 Portugal, 183 post-mortems, 202, 205 Power, Eleanor, 201,216,365nl22 Power, Mary, 202-3,204,362n77 Power, Maurice, 202 Power, Patrick, 235 Power, Robert, 216, 365nl22 prerogative writ, 22,97,283 press, newspaper. See newspaper press Preyer, Kathryn, 229 Primm, Peter, 229 Prince Edward Island, 269 prisons. See gaols privateers, 163,165 proprietary colonies and governors (in Newfoundland), 29-30 Protestants and Protestant churches: as Conservative, 220; population of, 215, 216f; Protestant politicians in Ireland, 351nl67; in reform movement, 268; as religion of

elites, 10,215,237,257,268; view of Irish Catholics, 221. See also religion Prowse, D.W.: on D'Ewes Coke, 342n33; on fishing admirals, 26,56, 58,59,317n99, 319nl21; History of Newfoundland, 4,18,265,280; on reform movement, 256 Public Ledger, 259,264,267,271, 272, 273,379n47, 379n60,381n76, 385nl43 punishment, capital, 187-221; and benefit of clergy, 126,229; for crimes against women, 206; and mental illness, 209,212; of women, 193,195-6. See also executions punishment, noncapital, 222-55; as alternative to execution, 229; avoidance of with capital offence, 204; class orientation of, 209,2378; consistency of, 224; control of means for, 74-5; demeaning work as, 250; as display of authority, 226,237; as example or deterrent, 249; house destruction, 217, 233t; under King William's Act, 35, 36, 78,125; local customs concerning, 200-1; under maritime law, 252; as means to discipline servants, 208, 223^, 242-5, 255,282, 285; and perceived threat of offence or offender, 199, 205,212,283; public apology as, 223,233t, 249, 253; as public events, 226; relation to trials, 204-8; resistance to, 83-4, 242, 253; in Royal Navy, 89,198; and social class, 199,209,210f, 248; threat of, 248; for women, 233. See also branding; ducking; fines and/ or court costs; servants; stocks and

Index 417 irons; transportation, deportation, and banishment; whipping; whipping(s) Pynchon, John, 158 Quidi Vidi, 76 Quinn, Thomas, 247-8, 373n90 rape, 188,190t, 206,218,362n87 Rediker, Marcus, 3, 247,248 Red Indian Lake, 13 Reece, Bob, 176 Reeves, John: and Bryan case, 197; as chief justice, 177-8,197, 365nl22; on courts, 112,114,155, 310n4, 333n39; History of the Government of the Island of Newfoundland, 17,26, 261, 365nl22; on local customs, 14, 108-9; on merchants, 175, 241; on property law, 123; on surgeons, 147, 341n27 reform movement in England, 105-6, 107, 257, 273, 276, 385nl34 reform movement in Newfoundland, 256-79; attacks on naval government, 261, 262, 264-5,284-5; as a coalition, 257, 270, 274, 279, 284; cultural memory of oppression, 261-2; factions within, 257, 272, 279; and freedom of speech, 259; historians' views of, 19-20, 256-7; and Lundrigan and Butler cases, 259-61, 262, 278, 384nl26; mix of arguments by, 275, 278; as nationalist, 261; as nativist, 270-1, 278; origins of, 179, 258-9; respectable image of, 274-5; rhetoric of, 259, 271; role of outports in, 275-6; role of women in, 268-70; summary of, 278-9

religion: missionaries, 67, 95-6,148; population by, 216t; and power structures, 284; and reform factions, 257, 272, 279; sectarian tensions and violence, 10-11, 83,21920,235-9, 284,385nl43. See also Protestants and Protestant churches; Roman Catholic Church Renews judicial district, 150m Renny, Alexander, ISlt, 183,185 reports (concerning Newfoundland): by Board of Trade, 34-5, 367,66,160; by Cummings (1714), 41; by Fane (1731), 102; by Kempthorn (1715), 42; by Larkin (1701), 33-4, 152; by Lord Vere (1728), 67; by Poole merchants (1829), 271 reprieve(s), 190-7; Bryan case, 196-7, 359n38; Fielding case, 190-1, 356nlO; only for murder, 189; as prison sentence, 188,190,192-3; role of secretary of state in, 189, 191,194-5; time limits for, 197-8. See also pardons and pardon process Roberts, Bartholomew, 43 Robin Hood Society, 158 Robinson, George, 141,265,271,273, 274, 276, 277, 278, 279, 384nl32 Robinson, (Captain) Robert, 33 Robinson and Brooking, 381n76 Rockingham, Charles Watson-Wentworth, 160 Rodger, N.A.M., 89,198 Rodney, (Captain, Governor) George Brydges, 106-12; and assize court, 117-19; on customary law, 126; as de facto chief justice, 116,127; and fishing admirals, 53; flagship of, 40,107,181-2; as governor, 106-7,

418 Index 154,320nlO; and governor's court, 114-19; and William Keen, 344n59; as legal reformer, 23,105,107,132, 152,285; political support of, 106, 118; and surrogate courts, 109-10, 126 Roman Catholic Church: Catholic Relief Acts, 235,255,268; establishment in Newfoundland, 235; grant of religious toleration for (1784), 218-19,235,367nl43; Mass, 11, 217,219,236; Palliser's decree against (1764), 161-2,238; and penal laws, 83,217,257,260; priests, 213,219,235,367nl43. See also Irish Roman Catholics; religion Rooke, Samuel, 45 Row, William B., 274, 275,381n75, 383nl07 Rowe, George, 82-3 Royal Charter of 1825,19,263-4 Royal Gazette, 258, 272,381n75 Royal Navy: admirals of, xv; appointment of governor, 68,106, 263; in colonial America, 146; impressment into, 182,213,219, 231-2; legal culture of, 198,220-1; legal resources of, 133; liberty onshore for sailors, 182; Newfoundland as source of sailors for, 31,33,44,161; Regulations and Instructions, 89,327nll3; as representative of British law and sovereignty, 90,180,181,282; social role of, 89,164,183. See also naval government; Newfoundland squadron; ships - Royal Navy Ryan, John, 381n75,383nl04 Ryan, Luke, 332n32

Ryan, Michael, 234 Ryan, Winnifred (alias Burk), 200, 201 Ryder, Dudley, 118,191 sack ships, 9 St John's: army garrison at, 35-6,147, 154-5,193,220,228,231; Banks's description of, 164; Benevolent Irish Society, 258,273; bourgeois culture in, 258,266,278,282; Chamber of Commerce, 265,268, 278,279,379n52; court in (1723-5), 45; fortifications to protect, 165; French capture of (1762), 144,217, 218, 221,232; Government House, 165,182,183; housing regulations in, 124-5; Irish population in, 376n9; judicial district of, 71m, 128, 150m; King's Wharf, 182; legal fees in, 77t; Lower Path, 193; naval presence in, 164-5,180,183,184; newspaper press in, 25, 258, 259; parade grounds, 272,274; prison in, 70, 72, 92; proposed council in, 263, 264,272; quarter sessions, 69, 117; Signal Hill, 181; social life in, 164-5,183; Society of Merchants, 258; subscription for Anglican church in, 143; Upper Path, 124; ward system for, 185 St John's assizes. See courts - St John's assizes St Lo, (Captain) John, 46 St Mary's, 167,275-6,295,321nl6 St Pierre, 143 St Pierre et Miquelon, 148 Salmon, Thomas, 74, 82 Sandwich, Lord, 106 Saunders, John, 231

Index 419 Saunders, William, 250-1 Schaffer, Simon, 64 Scott, Commodore, 42 seabirds, 195 seal fishery, 180 seasonal migrants, 8 secretary of state (Britain): role in reprieves and pardons, 189,191, 192/, 194-5; Southern Department, 66, 320n3 secret societies, 215 sectarianism, 10-11, 83, 219-20,2359, 284, 385nl43 sedition: alleged among Irish Catholics, 188-9, 284; among soldiers, 216, 220,293 servants, 9-12; contemporary accounts of, 241; contracts of (see contracts); dieters, 11,161,162, 238; fishermen pressed into Royal Navy, 231; gender of, 202f; living and working conditions of, 10, 161-2, 238, 241; and maritime law, 252; population of, 199, 202t; relationship with masters, 11-12, 208, 246, 252; social position of, 8-9, 208; and surplus labour issues, 238, 245; as temporary settlers, 8; verdicts in master-servant cases, 244£; wages of (see wages). See also class and social structure; law master and servant; punishment, noncapital Sexton, (Captain) Charles, 149,150, 151,155 Shanawdithit (Beothuk woman), 13 Shank, Peter, 85, 86 Shapin, Steven, 64 Shaw, Joseph: The. Practical Justice of the Peace (1728), 69

Shea, Henry, 380n61 Shea, John, 266-7, 279, 380n61, 380n64,380n74,381n78,383nl07 sheriffs, 114,127 shipping papers, 10,12, 305n32. See also contracts ships: brigs, 40,166m; designation of warships, 315n63; frigates, 92,167; naval deployment around Newfoundland, 150m; refusal to carry mail (1828), 265; schooners, 40, 92, 110,145,149,166m; ships-of-theline, 40; shipwrecks, 185; sloops, 110,167,18lt; surgeons on warships, 147; surrogate courts on warships, 109-10,114 - merchant and fishery: Agnes and Mary, 85; Amy, 157; Duke ofleinster, 174; Flora, 47; Friends Adventure, 86; George-Yard, 231; Joseph and Frances, 48; Nancy, 85; Nicholas, 33, 38; Sea Flour, 44; Sukey, 156; William, 251,252 - Royal Navy: Adonis (schooner), 18U, 183-4; Alborough, 166m; Alert (sloop), 181*, 183,185; Antelope, 145,181*, 183; Argyle, 46; Assistance, 33; Bienfaisant, 163; Boston, 213; Chatham, 94; Comet (sloop), 180,181t, 184; Dursley, 92; Echo (sloop-of-war), 54,172; Egmont (schooner), 166m; Fox, 163; Gosport, 143; Guernsey, 164-5,245; Labrador (schooner), 166m; Lark, 150m; Litchfield, 36; Loo, 34; Ludlow, 46; Mackarel (schooner), 180,18H, 184, 185; Mercury, 107,109; Nautilus, 166m; Otter, 166m; Oxford, 77; Panther, 166m, 170, 315n63; Pearl, 149, 150m; Pegasus, 90,183,236, 237;

420 Index Placentia, 166m; Placentia (schooner), 166m; Rainbow, 40,106,107, 117; Roebuck, 91; Romney, 231,232, 357n23; Rose, 166m; Salisbury, 79, 80,82,173,237; Saltash (sloop), 109,126; Solebay, 150m; Spry, 150m, 153; Squirrel, 69; Suprize (schooner), 144; Torrington, 93; Tweed, 150m; Yorfc, 37. See fl/so Royal Navy ships' rooms: bows as markers for, 49; leasing of, 258-9; regulation of, 47-9,131-2; statutory provisions for, 124,172 Shorthill, Nicholas, 228 Shuldham, Governor, 170,199,201, 202-3,231,362n77 Shy, John, 168 Signac, Peter, 74 Signal Hill (St John's), 181 Slaughter, Thomas, 45 Smallwood, Joey: Barrelman, 18 Smith, Henry, 53 Smith, James, 41 smuggling, 93 social structure. See class and social structure Society for the Propagation of the Gospel, 67,95,148 Society of Merchants, 258 soldiers. See British Army Southmayd, Allen, 45, 70,321n20 Sphynx (newspaper), 266 Spry, Sarah, 195-6,202 Spurrier, Timothy, 85 Squib, Francis, 83-4 squid jigging, 202 Stackebald, John, 206,218, 362n87, 365nl22 Stanweth, John, 249 state formation, 15,16,22, 281, 286

Steele, Ian, 3 Steevens, Lieutenant, 91 Stephen, James, 264,277,378n45 stocks and irons, 72; control of, 74-5; damage to, 83^4; imprisonment in, 92,223,249; sentences to, 233*. See also punishment, noncapital Stone, Thomas, 47-9 Strait of Belle Isle, 184 Stuard, Thomas, 83 surgeons: as coroners, 23; income of, 341n27; as magistrates, 23,147-8, 342n30; post-mortems performed by, 202,205; role in outports, 1478, 283; social position of, 208 surrogate courts. See courts - district/surrogate Sweetland, Henry, 373n91 Taverner, John, 82 taxation and duties: as catalyst for reform movement, 257; and Declaratory Act (1778), 266-7, 271, 380n63; to finance church in St John's, 143; to finance prisons, 70, 72,92-3,128; import duties, 130, 264, 265-73,379n51,383nl01; legality of, 72-3,85,128, 265-73; means of raising, 255; merchants' opposition to, 93,129-30, 227,2656,272 Taylor, Thomas, 251-3 Taylour, (Captain) Joseph, 36 Teede, Richard, 56 Teignmouth (Devon), 185 Terril, James, 200 theft. See burglary and larceny Thomas, Aaron, 179,213,219; Newfoundland Journal, 353nl98, 364nl06

Index 421 Thomas, William, 268, 271, 272, 274, 275, 277, 379n52, 381n76, 383nl07 Thomas and Stokes, 55 Thompson, Captain, 150 Thompson, E.P., 97,197 Tobin, Nicholas, 356nll Tomlins, Christopher, 6, 69 Torbay (Devon), 185 transportation, deportation, and banishment, 190f, 223,225t, 226, 233£, 254; to American colonies, 194, 223, 226, 357n22; of Catholic priest, 367nl43; imprisonment pending, 229; to Ireland, 229, 234; and Irish convicts controversy, 129,174-6, 226; and pardon process, I90t, 194,199; for vagrancy, 238; women sentenced to, 200,203. See also punishment, noncapital treason, 119,122, 218 Treaty of Aix-la-Chapelle (1748), 95, 105 Treaty of Paris (1763), 148,149 Treaty of Utrecht (1713), 36, 43, 80 Treaty of Versailles (1783), 184 Trepassey Bay, 129,196, 321nl6; judicial district of, 150m, 295 Trevanion, (Sir) Nicholas, 37-8 trials, 94,122,152t, 204-12, 210t, 218; character evidence in, 206-7, 209, 211-12, 221; class-based outcomes of, 208-9, 215, 221; differing witness accounts, 252; for felonies, 31, 33, 67, 69, 76-7, 92,93,117-19,122; and fishing admiral's courts, 47-9; involving personal vendettas, 234; Irish translators for, 215; irregularities in, 191, 203; newspaper coverage of, 258; victim's dying words as evidence, 205; witness turned

King's evidence, 216. See also courts Trinity Bay: cases heard by magistrates in (1760-90), 319nl23; fishing admirals' courts in, 50; French capture of, 144-5; judicial district of, 71m, 128,150m, I52t, 242t, 293-4; magistrates in, 82,96,127,151,16870,225-6; master-servant cases in, 244t, 245, 249, 251-3; missionaries in, 96; prison in, 151; servant violence in, 83-4; settler's court in (1703), 45; stocks in, 83^; surplus labour in, 224,245; surrogate court in, 47,117,144,153, 242-3 truck system, 5,161, 372n73 True Interest of Newfoundland (anon.), 131 United Irish Rising, 220,221 vagrancy, 160,162,208,238,240£ Vallis, Joseph, 86 Vanbrugh, Governor, 88,94,118 Vaughan, William, 30 Vernon, (Admiral) Edward, 105-6 Vickers, Daniel, 246 violence: anonymous threat of, 238; Ferryland affray, 219, 224, 233f, 234-5; involving groups of servants, 83^1, 253-4; in master-servant relations, 250-3; sectarian, 220, 235-9, 284, 385nl43; against women, 201-2,204-6, 211 wages (of servants): and fish prices, 11-12,127; law of wages and lien, 126,148,159,161,162,243,331nl8; legal regulation of, 160-1,162; liquor purchased with advances,

422 Index 12,161; and truck system, 5,161, 372n73; withheld for passage home, 238,243 Waldegrave, (Admiral, Governor) William, 179 Walden, John, 249 Wallace, Governor, 219 Walsh, Vince, 246 war(s): effect on naval presence, 24, 43,95,143-5,163; local militia, 143; Newfoundland Regiment, 165; specific wars: American Revolution, 24,163,165,194,226,266, 357n22; French Revolution, 24, 258; Jacobite Rebellion (1745), 217; Napoleonic Wars, 24,258; Seven Years' War, 143-5,148,217; War of Jenkins' Ear, 87,94-5; War of the Spanish Succession, 34 Warden, Thomas, 249 Waterford (Ireland), 201,215,284 Waterman, Richard, 82 Watts, William, 242-3

Webb, (Captain, Governor) James, 144,154 Welch, Walter, 249-51 West Country (of England): merchants from, 9,18,32, 65,85-7,94, 98,156-8,176, 237; seaports, 185. See also England Western Charters, 30 Weston, Peter, 150 Whig party (in England), 160,260, 273, 279,280,385nl34; Grey administration, 277,279,385nl34 whipping(s), 223,228-31,239-42; Biblical reference to, 369nl7; as common punishment, 236,245; contemporary accounts of, 240; for contempt of court, 259-60; court

records concerning, 293; crimes punished with, 225t, 233t, 240£; in Ferryland affray, 234; discretionary use as deterrent or example, 224, 236,242,243,247-8,253,254; fear of, 242,255; as means to discipline servants, 208,223-4,242-5,255, 282, 285; as naval punishment, 89, 198, 236,240-2,254; number of lashes, 228-9,230,234,236,240, 369nl7; as public events, 224,2289; resistance to, 242,253; severity of, 230, 236; stopped by surgeon, 259; threat of, 248; use in Britain and British colonies, 200,229-30; of women, 35,200. See also punishment, noncapital Whiteboys, 215 Whitwood, William, 53 William Henry, prince of England (later William IV, king of England), 90,235-7 Williams, Griffith, 216, 217-18, 366nl29; Account of the Island of Newfoundland, 131 Winton, Henry, 267, 272,274, 275, 279,382n90; as editor of Public Ledger, 264,266,379n47,379n60, 380n68; and John Kent, 380n74; relationship with Catholic Church, 385nl43; on representative government, 264,266, 270,384nl25 Withers, John Collier, 383nl04 women: death sentences for, 193, 195-6,200-1,202-3; gender roles of, 201,270; juries of, 203; moral judgment of, 201,202-3; population of, 201,202t; pregnancy, 1956,203; prosecution of, 360n54; punishments for, 200^1,233; rape

Index 423 of, 188,190t, 206, 218, 362n87; regillations concerning, 201; role in fishery, 9, 201-2, 270; role in reform movement, 268-70; violence against, 201-2, 204-6, 211; whipping of, 200

Wood, Gordon, 3,167 wrecks, 185 Wright, Barry, 287 Yorke, Philip, 72-3 Young, William, 47

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PUBLICATIONS OF THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

1981 1982

David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784—1914 1983 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II 1984 Patrick Erode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1986 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791-1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923-1957 1988 Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge 1989 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Erode, The Odyssey of John Anderson 1990 Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III - Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IVBeyond the Law: Lawyers and Business in Canada, 1830-1930 1991 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada 1992 Brendan O'Brien, Speedy Justice: The Tragic Last Voyage of His Majesty's Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography 1993 Greg Marquis, Policing Canada's Century: A History of the Canadian Association of Chiefs of Police F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution 1994 Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V-Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866

1995

David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI - British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion 1996 Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I - Law, Politics, and Security Measures, 1608-1837 1997 James W. St.G. Walker, 'Race,' Rights, and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Erode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944-1948 Ian Bushnell, A History of the Federal Court of Canada, 1875-1992 1998 Sidney Harring, White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, 'Terror to Evil-Doers': Prisons and Punishments in NineteenthCentury Ontario 1999 Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 G. Elaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII - In Honour ofR.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge 2000 Barry Cahill, The Thousandth Man: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust 2001 Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers' Collective Action in Canada, 1900-1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life ofJ.L. Cohen 2002 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Erode, Courted and Abandoned: Seduction in Canadian Law David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791-1849

F. Murray Greenwood and Barry Wright, Canadian State Trials, Volume II: Rebellion and Invasion in the Canadas, 1837-1839 2003 Robert Sharpe and Kent Roach, Brian Dickson: A Judge's Journey Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699-1832 George Finlayson, John }. Robinette, Peerless Mentor: An Appreciation Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856-1878