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A sheriff legally was supposed to use a gathered mob
when he needed assistance to enforce law.

In Rhode Island and Massachusetts, as in England, there was no municipal or state police force during  pre-Revolutionary days of the 1700's.  It not until the early part of the 19th century that, amid much controversy. the first standing police force was created in England by Sir Robert Peel. In pre-revolution America:

  • The sheriff was a county official, appointed by the colonial government . He and his deputies could serve court papers, investigate crime and make arrests, or do any other task to maintain law and order.
  • Towns and villages often annually appointed or elected a person to serve for a year unpaid, as parish constable.  He worked in co-operation with the local Justices in securing observance of laws and maintaining order.  His main job ordinarily was to serve legal papers and summon jurors, not to keep the peace.

For maintaining peace the England and the English colonies depended upon citizen participation. It was a scheme for enforcement designed for British towns ready, willing, and able to enforce the law against a criminal, not a scheme for enforcing a law where the town was not ready to enforce it. Any civil official who proclaimed a riot existed, and read the "riot act" in front of the rioters, could summon bystanders to assist him in quelling the riot.  Likewise, a sheriff who had a court warrant or writ or had a reasonable reason to arrest someone had the right to order citizens to aid him. A statute similar to the Riot Act gave the sheriff authority to turn bystanders into a posse. So, in short, when an arrest had to be made of a dangerous person or several persons, the townspersons were to do the job, with the sheriff directing what was to be done.  The bystanders were referred to as a "mob".  Hence the colonies were used to the idea of a legal "mob" of bystanders assisting in such activities as serving a warrant.

An example of how the system actually worked during the enforcement of customs taxes, was an instance where the Sheriff of Suffolk County, RI,  was trying to get into a building where he had been told there were goods on which the customs tax had not been paid.  He was not allowed entry into the place, so he ordered a crowd which had assembled to assist him to forcibly enter the building.  The crowd said they would assist but only if the custom house officers would state on oath who their informer was. Because the sheriff recognized that the crowd had the idea of tar and feathering the informer, the sheriff declined to name the informer.  Hence, he had to depart and was not able to get into the building to seize the illegal goods.

That is why 18th Century Americans unlike today's Americans distinguished between lawful and unlawful groups of people engaged in violent acts against persons.. The "lawful mob" tradition came from the legally justified ability of the English crowd to enforce justice and to assist the sheriff. Thus John Adams could argue for that Boston common people could use violence to prevent what he argued were "illegal and unconstitutional" enforcement of unconstitutional tax statutes. In another context he said:

"Suppose a press gang should come on shore in this town, and assault any sailor, or householder in King Street, in order to impress him without any warrant, as a seaman in his Majesty's Service.... I agree that such press gang would be an unlawful assembly. If they were to impress an inhabitant and carry him off for a sailor, would not the inhabitants think themselves warranted by law to interpose in behalf of their fellow citizens."

In short, what today we regard as a mob could in 1772 in Rhode Island could be legally termed a posse assisting a sheriff or otherwise legally enforcing the law when lawbreaking occurred in their presence. What was probably the first act of open resistance to British rule was just such a use of what the Americans regarded as a "lawful mob" acting against unlawful force. It occurred on July 9, 1764 when crewmembers from the British schooner St. John  attempted to carry off without warrant an alleged deserter from Newport. The townspeople forcibly resisted this act, and in the resistance took the opportunity to use the cannon of the local Fort George to fire eight shots against the British frigate Squirrel, which was the main ship attended by the St. John.

The impressments example of John Adams of a "lawful mob" acting against unlawful force by a navy commander was acted out in December of 1764. The Gaspee was at that time commanded by a Lt. Allen.  Stout in The Royal Navy in America, at pp 62-63, records the following events when the Gaspee was in Maine.

Lieutenant Thomas Allen, her commander, found vessels arriving and leaving "without so much as taking the least notice of the Custom house." Allen seized two or three ships. . . Meanwhile, several of the Gaspee's crewmen deserted. . . Left without enough hands to navigate the Gaspee safely, Allen impressed four merchant seamen, but a mob kidnapped him and made him release his new recruits. The lieutenant finally decided that "it would be no manner of purpose for him to remain longer there...."

When the mobs were encouraged by the actions of the courts upholding their actions, and no grand jury willing to indict for a criminal act, enforcement of the imperial law could be stopped. For example, when John Hancock's sloop Liberty was seized for violation of the trade laws, a riot occurred. No magistrate would read the Riot Act. An English naval vessel towed Liberty out into the harbor beyond the reach of the mob, but the Bostonian mob threw stones at customs officials and broke windows in their houses. The commissioners went into hiding and later transferred their operations to offshore in the fleet.

Notes and Sources.

An Act Enabling Sheriffs, Constables Etc, to Require Aid and Assistance in the Execution of Their Respective Offices Referring to Criminals. 1698. 

Boston Evening Post, reporter. "Letters from the Commissioners of the American Customs to the Lords of Trade, 16 June 1768,." Boston Evening Post, 18 Sep.1769, 1. 

Kidder, Frederick. History of the Boston Massacre. 1870. 

Reid, John Phillip. In a Defiant Stance. University Park, PA: Pennsylvania State Univ. Press, 1977. ISBN 0-271-01240-4. Summary of book: Colonial law was locally controlled, and as a result imperial law was almost nonexistent as a viable influence on individuals; the nature of imperial law, and the adherence of English forces to the constitutional imperial law impaired the effectiveness of the British army and navy as police forces before and during the Revolution. This is a book by a lawyer, who understands the legal proceedings overlooked by most historians. 

Wilkins, George G. "Daniel Malcolm and Writs of Assistance." Massachusetts Historical Society Proceedings 58 (1924): 5.

 

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