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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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