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Collective Violence in Ferryland District, Newfoundland, 1788

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Collective Violence in Ferryland District, Newfoundland, 1788 Dalhousie Law Journal Volume 21 Issue 2 Article 7 10-1-1998 Collective Violence in Ferryland District, Newfoundland, 1788 Christopher English Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/dlj Part of the Legal History Commons Recommended Citation Christopher English, "Collective Violence in Ferryland District, Newfoundland, 1788" (1998) 21:2 Dal LJ 475. This Article is brought to you for free and open access by the Journals at Schulich Law Scholars. It has been accepted for inclusion in Dalhousie Law Journal by an authorized editor of Schulich Law Scholars. For more information, please contact [email protected]. Christopher English* Collective Violence in Ferryland District, Newfoundland, in 1788 In September 1788 a court found 114 men guilty of riotous assembly in the district of Ferryland the previous winter. This event is remarkable for the number involved (45% of the adult male population of the district); for the number of charges (21% of all civil and criminal actions heard in the district's courts over the next 25 years); for the absence of damage to property; and for the severity of the sentences, which included loss of wages, flogging, transportation and banish- ment. These proceedings occurred in a community where *the majority (Irish planters, fishermen and apprentices) were socially distinct from the small Protestant elite of merchants who dominated government office. It is proposed that this elite exploited the presence of a Gaelic-speaking renegade priest who was bent on undermining .the authority of the papal vicar-apostolic in St. John's, in order to sow division among the rapidly-increasing Irish majority. Taking advantage of a policy of imperial centralization and rationalization decreed in Whitehall and at Westminster, the plan succeeded as the rioters were judged guilty in the name of order and state security. In the short run private interest informed public policy, reminiscent of the use of the law by the supporters of Walpole and the Hanoverian succession at home. The trials in Ferryland in 1788 signalled the end to what E P. Thompson has called a "moral economy, "a flexible and locally-mediated definition and application of the law. But in the longer run, as at home in England, the victors of 1788 themselves had to defer to new definitions of law and administrative accountability decreed from London. En septembre 1788, la coura prononce 114 hommes coupables d'une assembl6e seditieuse, tenue I'hiverprc6dent dans le district de Ferryland. Cet evenement est remarquable a cause du nombre impliqu6 (45% de la population adulte male du district); pour le nombre d'inculpations (21% de tout les proces civils et criminels entendus dans les cours du district au cours des prochains vingt-cinq ans); pour I'absence de d6glts materiels; et pour la s6verit6 des sentences, qui ont inclu le fouet, le transport, le banissement et la perte de salaire. Ces proces ont eu lieu dans une communaut6 ot) la majorite (planteurs irlandais, p6cheurs etapprentis)etaitsocialement distinct de la petite elite de marchands protestants qui composaient le gouvernement. On propose que cette 6lite a exploite la pr6sence d'un pr~tre renegat de langue gaelique qui se pr6occupait d'6branler I'autorit6 du vicaire-apostolique du Pape a St-John's, afin de semer une division parmila croissante majorit6 irlandaise. En profitantd'une politique de centralisation et de rationalisation imperiale ordonnee a Whitehall eta Westminster, le plan a reussi car les manifestants ont 06 jug~s coupables au nom de l'ordre et de la securit6 de I'etat. A court terme I'int6r6tpriv6a inform6 la politique publique, qui rappelle I'utilisation de la loi par les partisans de Walpole et la succession * An earlier version of this paper was presented to a Legal History Conference held in Toronto on 8 May 1998 to honour Professor R.C.B. Risk. 476 The Dalhousie Law Journal hanoverienne. Les proces a Ferryland en 1788 ont signale la fin a ce que E.P. Thompson a nomm6 "moral economy" (6conomie morale), une approche flexible i la loi et son application, variant selon les exigences locales. Mais a long terme, 6 Terre-Neuve comme en Angleterre, les vainqueurs de 1788 ont dO eux aussi se d6ferer a de nouvelles d6finitions de la loi et a la responsabilite administrative ordonnee par Londres. The small historic Newfoundland outport of Ferryland-today 75 kilo- meters by road south of St. John's-in the eighteenth century was accessible only by footpath or by sea. A three-man court, sitting there for 14 days from 17 September 1788, found 114 men guilty of riotous assembly on an undefined day or days in the preceding winter. Sitting on the bench were the governor's surrogate, Royal Navy Captain Edward Pellew (later Lord Exmouth), and two resident fish merchants, surrogate and justice of the peace, Robert Carter, and J.P. Henry Sweetland. Peter Romney was sworn in as a J.P. by the court on 22 September. The court imposed fines totaling £640 6s Id. Thirty-one fines were under £5; 67 between £5 and 8; 12 between £8 and £14; five ranged upward to £20. In addition, five men were to be flogged and 11 transported "home" (to the English West Country or southern Ireland). Thirteen, 12 of whom were sentenced as ringleaders in absentia,would forfeit their total wages for the season. Those who were sharemen would surrender their entire share of their boat's seasonal catch once wages owed to their coadventurers had been paid. By an imperial statute of 1775, fishermen had first claim on the proceeds of the voyage. The 12 "ringleaders and open abettors of the riots" were banished from the district and subject to "39 cat o' nine tails lashes on their bare back were they to return." The property of those fined was subject to distraint. Anyone guilty of harbouring fugitives would be fined £20, raised on 1 October to £50.1 Such is the brief and impersonal nature of the court record. Close examination yields a few more, still elusive, details. The guilty were inhabitants; their unlawful assembly was "to the great and manifest danger [of] the inhabitants of this place and their property." Threats had been "made to many of the principal inhabitants" which might be put into effect in the upcoming winter. "Riots" are referred to in the plural. These words are not from an indictment. They were recorded contemporane- 1. Provincial Archives of Newfoundland and Labrador [P.A.N.L.], GN 5/4/Cl, Ferryland District surrogate Court Book, 1786-1812, 17-30 September 1788 and subsequent proclama- tion, I October 1788. Of the four only Pellew, Ist Viscount Exmouth, has a biography: S. Lee, ed., Dictionary of National Biography, vol. XLIV (London: Smith, Elder & Co., 1895) at 266-70. Collective Violence in Ferryland District, Newfoundland, in 1788 ously by the court clerk, probably on the very day of the trials. Equally important is the fact that the clerk (as external evidence indicates) was the prosecutor and in effect, crown counsel.2 In the absence of any recorded complaints by private citizens, I assume that we are dealing with one "riotous" assembly, possibly over several days, in the one centre of Ferryland, which did no damage to property or to individuals who did not participate in the unrest. From subsequent entries we learn that four of the fugitives surrendered themselves that autumn on condition they be transported home without being whipped. One, James Sheehan, had his sentence (loss of wages of £18 11s, flogging and transportation) reduced to a simple fine of £4 1Is. One planter, Nicholas Murphy, fined £20, had his property and effects, including house and garden, sold at auction on 6 October. The purchaser was his tenant, Thomas Norris, who had been paying a rent of £6 1Os per annum on a seven-year lease. Norris raised the purchase price by contracting separate promissory notes payable to six residents: Mrs. Tree, proprietor of Ferryland's sole, and respected inn; John Migault, fish merchant; Justice Carter; Carter's son William, the island's solejudge of Vice-Admiralty; Justice Sweetland; and Sweetland's wife (daughter to Robert Carter). If the judges' fees, payable to them in lieu of salary, 2. P.A.N.L., Colonial Office, Correspondence, Newfoundland, 194, vol. 38, 203, Governor Mark Milbanke to London, 6 July 1790: "William Easton, clerk of the said court [Oyer and Terminer], who prosecutes for our Sovereign Lord the King ...." In the absence of both indictment and court transcript we cannot know how closely the evidence reflected the elements of the common law crime of riot. We are clearly beyond the charge of "affray" (up to three people congregating, without the mens rea to commit an offence). A crowd meeting with a common intent but not putting it into effect and then dispersing might comprise an unlawful assembly which, if the crowd moved towards the execution of such intent, would comprise a riot. The facts of the instant case seem to justify the charge of riot: three or more persons with common intent using force "against the peace or to the manifest terror of the people, whether the act intended were lawful or unlawful": R. Burn, The Justice of the Peace andParishOfficer, 22nd ed., 5 vols. (London: T Cadell, 1814) vol. 5 at 15. The first magistrates appointed in 1729 were each provided with the two volumes of the recently published J.Shaw, PracticalJustice of the Peace(London: T. Ward, 1728) which was reissued in five editions to 1751. Presumably commentaries such as Bum's (first edition 1754 and 30 to 1869) replaced Shaw as guides for local magistrates.
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