The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699-1832 (review)

The arrival of a new generation of historians is to be celebrated, especially within the context of a specialty – legal history – which has developed quite recently in Newfoundland. Jerry Bannister, already well known in Newfoundland historical circles, has produced an exhaustively researched, wide-ranging, and clearly argued study that offers a new and intriguing thesis. He joins Sean Cadigan, Trudi Johnson, Willeen Keough, Peter Pope, and Jeff Webb, recently emerged scholarly commentators on the Newfoundland legal scene.

In a sense he pours new wine into an old bottle for, on its face, what could be more traditional than an examination of the role of an institution of state power, the Royal Navy, which was on station seasonally both before and after the period covered by this volume? He argues that while naval captains showed the flag, reinforcing Britain's claim to exclusive jurisdiction over an international fishery, the role they played in the administration of Newfoundland (Labrador is almost entirely absent from this discussion) was critically important. They mediated the introduction and institutionalization of the common law, a legacy said to have outlived their powers as the naval governor's surrogates, abolished by the judicature act of 1824. These are the admirals of the book's title, to be distinguished from the fishing captains of the seasonal migratory fishery dating from the sixteenth century, who were empowered by the imperial statute of William III in 1699 to settle local disputes, major crimes being reserved for adjudication in England when the fleet returned home. Without the admirals one might conclude: no navy equals no law. On Bannister's reading, commentators who have missed the central and determining role of the navy have simply got it wrong. But the author's peers, who are dismissed in sometimes ungenerous language, may not be misguided. Perhaps they had other interests and were looking at the eighteenth century through windows that were valid in their own terms. Bannister has added an important perspective on the landscape of law in Newfoundland, but it is, in effect, a one-factor explanation.

Bannister adds much of interest to our knowledge of the process by which law came to Newfoundland. He has written the fullest and most definitive account of how Captain and Governor George Rodney in the mid-eighteenth century turned an appeal jurisdiction under the 1699 statute into one that enabled his naval surrogates to popularize and shape what was locally useful in the common law to local circumstances. Through judiciously tempering power (the cat-o'-nine-tails) with mercy, the surrogates controlled criminality and accustomed the residents – permanent and seasonal – to the rule of law. Their legacy is the smooth transition to local institutions and representative government in 1832 and contemporary forms of law.

The law under examination here is the common law, especially that of criminality and master and servant. As I read page 15, Bannister defines custom as an exercise in elite power. He denies any influence to popular or 'plebeian' views that might have played into the negotiation of the law. The cat would prevail, as on shipboard, to enforce authority. But was it widely used? Were servants also whipped who absented themselves without permission, and so vulnerable to lost wages under an imperial statute of 1775? For that matter, were criminals whipped? My own search of 534 cases at three levels of court in the southern Avalon district of Ferryland over seventy-five years down to 1815 yielded only 4 cases when whipping was decreed, much less carried out. Bannister notes it was often impossible to find someone to administer the lashes. Are we still preoccupied with the punishment applied in the notorious cases of Butler and of Lundrigan in Harbour Grace district in 1821, which discredited the system of surrogates and contributed to their demise in 1824? As in Ferryland, so in Conception Bay (as...