The Rule of the Admirals
Law, Custom and Naval Government in Newfoundland, 1689-1832

Jerry Bannister
Toronto: Osgoode Society for Canadian Legal History, 2003

The premise that Professor Bannister explores in this superb and challenging text is that Newfoundland’s naval government needs to be assessed in the context of eighteenth-century Newfoundland and thus, that one ought not to accept the too-common belief that anarchy and quarter-deck justice were the hallmarks of a profoundly unjust system of law. Indeed, for scholars of criminology and of penology in particular, The Rule of the Admirals Law, Custom and Naval Government in Newfoundland, 1689-1832 discusses a host of case studies, court records and other primary sources to reveal a system of criminal justice that was highly local in nature and responsive to the needs of government to ensure law and order. At the same time, it was not devoid of leniency and not unmindful of the particular social and sectarian cleavages that underlay a great deal of the so-called criminality. This is not to say that the offender was far better off than his English contemporaries, far from it. Instead, local conditions brought about a degree of adaptability in the development of the “common law of sentencing” and in selection of penal responses that is worthy of further study and debate. For example, it may be said that the not so uncommon selection of a pardon to conclude the prosecution and sentence of an offender has much to teach us when faced with contemporary issues surrounding the commission of a serious offence by a particularly sympathetic offender,¹ or in cases involving an attempt to denounce certain behaviour by a selective prosecution scheme that culminates with a “closed file” once public education, such as it is, is achieved.

It is the development of these “customary arrangements” (see p. 281) that commends this text to those interested in the genesis of punitive responses short of capital punishment. Hence, Chapter 7, “Enforcing the Social Order: Punishment in a Fishing Society” on pages 222-255 enriches our understanding of the effectiveness of trials as vehicles for law enforcement in a society where jails are almost unknown and the capacity to incarcerate an individual post-offence almost non-existent. The distinct patterns of non-capital punishments that are studied with commendable skill demonstrate that swiftness in the selection of punishment and significant financial consequences to offenders may have a much greater impact than our present scheme of sanctions is prepared to credit. That is not to say that the use of whippings, branding and pubic stocks is of no advantage to contemporary scholars in reminding us of the role of public shaming in achieving (or preventing) the goals of community protection.²

Further, the incisive discussion found on pages 187-215 of Chapter 6, “Using Mercy and Terror: The Patterns of Criminal Justice” tells us as much about the need in an emerging society for those in power to demonstrate their ability to crush opposition to the existing order by the use of naked force as it does the imperative need not to resort to such measures unless absolutely required. In short, well-publicized trials may deter as much as sanctions. In addition, Professor Bannister’s skillful exposition of the rationales for discretionary authority and mercy is quite instructive in making plain, on the one hand, how the severity of the offence often dictates the penal response notwithstanding the dynamics at play and, somewhat paradoxically, how certain individuals benefit from the criminal justice system’s emphasis on personal appearance and apparent good standing in society to gain leniency or favourable results. Further, the author identifies valuable primary sources on the treatment of women as victims and as offenders. In particular, the author highlights how the double violation by female offenders of both the criminal laws and their prescribed gender role often led to severe consequences out of proportion to the wrongdoing (note pp. 200-204 in particular).

On the whole, this text succeeds in uncovering critical errors in the traditional view of punishment for the time period in question, unfounded condemnations of the rigour and organization of the scheme of criminal justice and, perhaps most importantly, in guiding future research efforts towards a better understanding of class, gender and sectarian influences in criminal justice in general and in particular with respect to the choice of sanctions for criminal behaviour.

^1. Refer to the discussion surrounding the Pardoning Act on pages 87-89 in “The Toronto Treason Trials, March-May 1838”, by P. Romney and B. Wright in Canadian State Trials Vol. II: Rebellion and Invasion in the Canadas, 1837-1839, edited by F.M. Greenwood and B. Wright, Toronto: Osgoode Society for Canadian Legal History, 2002.

^2. Refer in particular to pages 79-80 of Restorative Justice and Responsive Regulation by John Braithwaite, New York: Oxford University Press, 2002.