The Politics of Piracy

Crime and Civil Disobedience in Colonial America

Douglas R. Burgess

• Publisher: ForeEdge
• Year: 2014
• ISBN:
  9781611686982
• Topic: History
• Subtopic: World History
• Index: History

The seventeenth-century war on piracy is remembered as a triumph for the English state and her Atlantic colonies. Yet it was piracy and illicit trade that drove a wedge between them, imperiling the American enterprise and bringing the colonies to the verge of rebellion. In The Politics of Piracy, competing criminalities become a lens to examine England's legal relationship with America. In contrast to the rough, unlettered stereotypes associated with them, pirates and illicit traders moved easily in colonial society, attaining respectability and even political office. The goods they provided became a cornerstone of colonial trade, transforming port cities from barren outposts into rich and extravagant capitals. This transformation reached the political sphere as well, as colonial governors furnished local mariners with privateering commissions, presided over prize courts that validated stolen wares, and fiercely defended their prerogatives as vice-admirals. By the end of the century, the social and political structures erected in the colonies to protect illicit trade came to represent a new and potent force: nothing less than an independent American legal system. Tensions between Crown and colonies presage, and may predestine, the ultimate dissolution of their relationship in 1776. Exhaustively researched and rich with anecdotes about the pirates and their pursuers, The Politics of Piracy will be a fascinating read for scholars, enthusiasts, and anyone with an interest in the wild and tumultuous world of the Atlantic buccaneers.

PART I

BEGINNINGS

CHAPTER ONE

LONDON FOG

A Brief, Confusing History of English Piracy Law

TO SPEAK OF the “law” in the seventeenth-century English Atlantic colonies is to open an enormous can of worms. Whose law do we speak of? How was it articulated? How was it enforced? These questions are critical, for they are the very essence of the state itself. It was through the law that England maintained dominion over its colonial possessions. English identity was defined in no small part by existence within the juridical boundaries of the Crown;¹ in theory, the common law was indeed common to all, colonists and Englishmen alike.²

The law, however, assumed a drastically different character when transmitted across the Atlantic. It lacked the immediacy of its English counterpart: the intricate system of justices and sheriffs, of itinerant courts and magistrates, all tasked with communicating the king’s law to his subjects and ensuring their compliance. In the Atlantic colonies this duty was vested in a single man, the colonial governor.³ While local assemblies had some jurisdiction over matters within the colony, governors were the conduits through which all Crown law passed. Given this, and the vast distance between the colonies and their mother country, it is not surprising to find heterogeneity among the colonial legal systems.⁴

In the formative years of the mid-seventeenth century, the English state lacked both the will and the ability to oversee its colonies; not until near the end of the century would a professional bureaucracy be established for colonial matters. Until then, and even after, the business of receiving and implanting the law belonged to the colonial governor. This was no sinecure; governors were de facto potentates, tasked with maintaining order, encouraging trade and settlement, keeping the peace with colonial neighbors, and—most importantly—safeguarding their colony from attack.⁵ The success of the colony lay in their hands. The king and his ministers understood the enormity of this task and vested these individuals with an enormous amount of personal prerogative. As late as 1746, the Lords of the Admiralty still maintained that they could not interfere with the depredations by colonial “privateers in America and the West Indies,” as the governors “alone have power to curb [their] insolencies.”⁶

This prerogative rested on the recognition of the Crown’s limitations and of the existence of circumstances in the colonies that often mooted its law and counsel. Colonies were “beyond the pale” of the law, distant outposts where wars and skirmishes often continued long after their conclusion on the European continent.⁷ The perception of perpetual violence arose not only from external threats but from the manner of colonization itself.⁸ In most territories in the Atlantic world, English colonies displaced native or preexisting populations.⁹ In Jamaica, for example, the English obtained the colony from its Spanish occupants by conquest in 1655, fostering an enmity between the two that made the threat of reconquest a constant worry for English administrators.¹⁰

Amid this highly charged political climate, there is nothing original in highlighting the fact that certain governors protected pirates or turned a blind eye to illegal trade. The relations discussed in subsequent chapters between the pirate Henry Morgan and Governor Modyford of Jamaica, or Thomas Tew and Governor Fletcher of New York, are well documented, yet few have taken up the task of placing these relationships within a legal context.¹¹ Nearly every historian of piracy, having examined the same set of documents in the state papers, reached the same conclusion as the Lords of Trade in 1696: governors that sponsored pirates were venal and corrupt, profiting from a practice that weakened the English state.¹² This conclusion fails to consider how the governors themselves regarded the practice. When evaluating the role of piracy in colonial legal structures, the first and most salient question must be: Did colonial administrators themselves regard it as illegal?

Instantly, we are in the weeds. English law on piracy was vague, contradictory, and cripplingly divided, first over definition and second over jurisdiction. As a civil law crime tried by common-law courts, confusion was inevitable. Customary law provided the seemingly inflexible definition of pirates as traitors and enemies of the state, yet justices repeatedly termed them “sea-robbers,” no different from highwaymen. These were two very different kinds of criminal. To confuse matters still further, statute law granted the sovereign unlimited prerogative to extend or contract the meaning of piracy to include almost any dubious act undertaken at sea. Jurisdictional wrangling deepened the divide: common-law courts often were reluctant to convict men who were their friends and neighbors (a phenomenon that reappears in the colonial context), while successive kings sought to remove piracy trials from this sympathetic atmosphere and place them instead under admiralty jurisdiction, an extension of the Crown.

The irony is that among all crimes, piracy has one of the oldest and most established legal pedigrees. Sir Edward Coke, in his Institutes, cites a Roman precept coined by Marcus Tullius Cicero at the height of the Republic. Pirates, Coke writes, were defined by Cicero as hostis humani generi, “enemies of the human race.”¹³ The threat of piracy came from its implied challenge to the laws and trade of the state: pirates removed themselves from the state’s jurisdiction, formed extraterritorial enclaves, and waged private war for pecuniary ends.¹⁴ Hence one could not speak of them merely as ordinary robbers, as the locus of that theft (beyond the state’s borders) transformed it.

Were pirates enemies of the human race, or common thieves? Hostis humani generi seemingly accorded status well beyond that of ordinary criminals, yet the acts constituting piracy were synonymous with those of felonious robbery and murder ashore. This echoes Justice Sir Charles Hedges’ assertion in 1696 that pirates were nothing more than “sea robbers,” highwaymen at sea.¹⁵

Conflicts over definition fueled cognate conflicts over jurisdiction. If pirates were felons, in the same class as highway robbers, then they should be tried by jury under the common law. But if they were hostis humani generi, their acts became a form of “petit treason,”¹⁶ removing them from common to civil law, under the jurisdiction of the admiralty. The logic was irrefutable. When English pirates attacked foreign vessels, it threatened the peace between those countries. Consequently, as early as 1289, Edward I established a commission to inquire into “trespasses” committed by English vessels against the king of France. The commission found that an equal number of English vessels had been plundered by the French, among others.¹⁷ This led to the first “letters of marque” (licentia marcandi) granted by the Crown to English sailors to reclaim stolen property at sea from foreign pirates. These licenses also recognized the newly created post of the Lord Admiral as the proper venue for declaring and disposing of captured goods.¹⁸

The intention here was most likely to limit legal remedies and prevent wars breaking out over petty mercantile squabbles: by granting commissions, the Crown established the reverse prerogative that any English sailor engaging in piracy without such commission transgressed against the Lords of the Admiralty.¹⁹ Thereafter piracy would not be construed as an act of war but instead as a crime against the Crown, and since that crime was directed against the king’s person it was properly understood as petit treason. The actual elements of the crime—specifically, theft at sea—were secondary to the outrage of violating the king’s trust by sailing without commission.

There was another, more pragmatic motive for the shift in jurisdiction. Common-law juries were notoriously reluctant to convict pirates. Ordinary folk, particularly in coastal communities, often identified with the accused, either through social or commercial ties. In 1352 King Edward III responded to this lassitude by attempting to wrest jurisdiction of piracy from the common-law courts altogether.²⁰ The coast of England and Wales was divided into nineteen districts, each granted a vice admiral to oversee all coastal and foreign trade and a judge empowered to decide cases involving the breach or detriment of that trade.²¹

Edward III’s efforts led to a revitalization of the claim for admiralty prerogative. In 1361 a prior order to try a piracy case in a common-law court was revoked and replaced by an order from the Crown for “our Admirals” to try the pirates “according to maritime law.”²² Yet here, as is often the case, the king overreached the limits of his bureaucracy. Until the sixteenth century there were no permanent tribunals under admiralty jurisdiction, but rather ad hoc affairs convened by commission from the king. It was not that the Crown lacked the will or inclination to try pirates, but rather that the civil law lacked the mechanisms of the common law for dealing with “ordinary” crime. Predicated on the presumption that pirates were traitors, it required that “they must plainly confess their offenses (which they will never do without torture or pains) or else their offenses be so plainly and directly proved by witnesses indifferent.”²³

This impossible standard provided the justification for wresting piracy jurisdiction back from the admiralty and giving it—once again—to the common-law courts. Henceforth, by the third decade of the sixteenth century, piracy at sea would be treated the same as a felony committed on land. A statute passed during the reign of Henry VIII dropped the word “pirate” altogether, replacing it with “traitor” and “confederator” (an early term for “mutineer”).²⁴ Piracy was a loaded word, carrying with it the concept of hostis humani generi and the weight of customary international law. Parliament clearly wanted to avoid the complexities of multinational transgressions at sea, which were more easily understood as an admiralty prerogative, and focus instead on the elements of the crime—the actus reus—which were synonymous with the common-law felonies of robbery and homicide.

Yet Parliament’s attempt to obscure piracy by its own elements found spirited resistance from the Crown, which reacted by using the term as often as possible. Distinguishing between privateers under admiralty commission and those who had none, Elizabeth I declared the latter “pyrats and rovers upon the seas” that were “out of her protection, and lawfully to be by any person taken, punished, and suppressed with extremity.”²⁵ This was a conscious echo of the Roman precept that pirates, as hostis humani generi, were subject to universal jurisdiction, meaning they could be captured anywhere on earth, by anyone who found them.²⁶ And so the piratical tug-of-war between Crown and Parliament lurched into a new century.

Behind this legal scrum was an even more sinister political reality: privateers, pirates in the employ of the Crown. The trajectory of government views on privateering from the fourteenth to the sixteenth centuries is one of condemnation to indifference to active sponsorship, a slow evolution away from the concept of pirates as enemies of the human race toward a new role as agents of the state. This not only complicated the legal definition of piracy but provided a justification for colonial governors in later decades to defend their own dubious privateering commissions.

Ostensibly the difference between the piracy and privateering is straightforward. Privateering involves piratical acts committed under the sanction of the state against ships belonging to an enemy state during time of war; such sanction takes the form of a commission granted by the sovereign. Piracy, conversely, occurs without state sanction, against any shipping friendly or hostile to the state.²⁷ This distinction loses much of its force, however, when applied to the actual history of piracy and privateering in the medieval and early modern periods. What we find on examination is a confused record wherein the common-law definition of hostis humani generi often appears simultaneously with active Crown sponsorship of privateers, even in times of peace.

In 1289 Edward I offered “Commissions of Reprisal” to the owners of merchant ships who had been victimized by pirates. The commissions entitled such merchants to seize in turn any merchantman flying the colors of the pirate who had first attacked them. There was no need to limit one’s captures to the amount lost, nor any cap on the number of vessels one could legally plunder.²⁸ A portion of the captured wealth went to the coffers of the Crown, condemned and processed by the admiralty. So began a system of legitimized maritime violence that would continue, with occasional lapses, for over three centuries.²⁹

Yet for much of that time privateering was merely another way to enrich, by small increments, the privy purse. A sea change came in the late sixteenth century, when tacit tolerance of piracy gave way to active sponsorship.³⁰ The catalyst was England’s declining relations with Spain. At its source, this conflict was almost exclusively mercantile: English ships were branching farther and farther afield, into North Africa and the Mediterranean, and even across the Atlantic to the Caribbean and South America. As they did so, they invariably came into conflict with preexisting trade, predominantly Spanish. Worse still, as the sea-lanes opened to English merchantmen, the pirates followed in their wake.³¹

It was not a simple matter to distinguish the former from the latter; historians assessing this period almost invariably refer to it as “confused.”³² First, English incursion on Spanish trade was far from peaceable. English ships sacked Spanish ships in the Mid-Atlantic, raided Spanish colonies, and captured Spanish forts.³³ The Spanish and their Portuguese allies retaliated in kind. Second, the...

Table of contents

• Cover Page
• Title Page
• Copyright
• Dedication
• Contents
• Introduction: The Sorrowful Tale of Robert Snead
• Part I. Beginnings
• Part II. An Empire In Crisis
• Part III. Pirate Nests
• Part IV. Rope’s End
• Conclusion: Forgotten Revolutions
• Notes
• Bibliography
• Acknowledgments
• Index