Pirates and Privateers

The first trial held under William III’s An Act for the more effectuall Suppressions of Piracy in Colonial America concerned John Quelch.⁸ He had been hired as first mate aboard the privateer Charles. The captain fell ill, and Quelch assumed command. Instead of going after enemy ships, Quelch and his men attacked Portuguese vessels off the coast of Brazil in November 1703. At the time, England and Portugal were allies, which made their attacks acts of piracy. In May 1704, Quelch and his men put into port at Marblehead, Massachusetts, and it wasn’t long before their purchases raised the residents’ suspicions. More than just Charles’s owners believed that Quelch and his men were actually pirates. The influx of gold and silver also concerned Governor Joseph Dudley, because actual currency could devalue the colony’s bills of credit. (At the time its commerce was based primarily on bartering.) The authorities issued orders for their arrest and the confiscation of the ill-gotten currency. Dudley took care of helpers and hinderers of these orders as well.

Whosoever shall discover & Seize any of the Pirates or Treasure concealed, and deliver them to Justice, shall be Rewarded for their Pains.

And any who conceal or have in their custody any of the said Treasure, & shall not disclose and make known the Quantity & Species, & render the same unto the Commissioners appointed for that purpose, within the space of Twenty Days next after the Publication hereof at Boston, shall be alike proceeded against. (Beal, 139)

Before long, twenty-five out of forty-three pirates were captured and seventy ounces of gold and seventy of silver were turned in. Quelch and others were arraigned and tried on charges of “Piracies, Robberies, and Murder” in June according to “the Statute made in the Eleventh and Twelfth Year of the late King WILLIAM . . . An Act for the more effectual Suppression of Piracy.” (Arraignment, 1)

The record of the proceedings included specific dates and places of their attacks, as well as what plunder they took and its value. John Clifford, Mutatis Mutandis, Matthew Pimer, and James Parrot pled guilty, before Clifford, Pimer, and Parrot were “received into the Queen’s Mercy, and . . . declared Witnesses in behalf of the Queen, against John Quelch and Company . . . .” (Arraignment, 4)

Quelch pled not guilty and asked for time to prepare for the trial with the assistance of an attorney. The court granted this request, assigning James Meinzies to “assist you, and offer any Matter of Law in your behalf upon your Tryal”, and gave them until “Friday Morning next, at Nine of the Clock” (16 June) to do so. (Arraignment, 4) Meinzies would also aid twenty other accused pirates: James Austin, Dennis Carter, John Carter, John Dorothy, Charles James, William Jones, Charles King, Francis King, John King, John Lambert, Richard Lawrence, John Miller, Benjamin Perkins, Erasmus Peterson, John Pitman, Nicholas Richardson, Peter Roach, Christopher Scudamore, John Templeton, and William Wilde.

One the sixteenth, Queen’s Advocate Paul Dudley outlined why the court was assembled.

A Pyrate was . . . justly called by the Romans, Hostis Humani Generis: And the Civil Law saith of them, that neither Faith nor Oath is to be kept with them; and therefore if a Man that is a Prisoner to Pirates, for the sake of his Liberty, promise a Ransom, he is under no Obligation to make good his Promise; for Pirates are not Entituled to Law, not so much as the Law of Arms; for which Reason ’tis said, if Piracy be commited upon the Ocean, and the Pirates in the Attempt happen to be overcome, the Captors are not obliged to bring them to any Port, but may exposs them immediately to Punishment, by Hanging them at the Main-Yard: A sign of its being of a very different and worse Nature than any Crime committed upon the Land; for Robbers and Murderers, and even Traytors themselves, mayn’t be put to Death without passing a formal Tryal: And if the fate of the Prisoner at the Bar, with his Company, had allowed them to have been overcome in their Piracies, &c. and immediately hung up before the Sun, it had been very just upon them. But being then suffered to live, and now brought unto a Court of Justice, they are to be used, treated, and tryed as the Laws of England, and our own Country do direct. (Arraignment, 5)

At this juncture, Dudley cited Henry VIII’s 1536 Offences at Sea Act, after which he mentioned that William Kidd had been the last pirate tried under this statute, having been transported to London to be tried in a court of law in England. Then Dudley explained the reasoning behind King William’s act before returning to the current trial of Quelch.

It is by Virtue of this Act of Parliament, and a Commission pursuant thereto, that your Excellency and this Honourable Court are now Sitting in Judgment upon the Prisoner at the Bar, and his vile Accomplices; and though it may be thought by some a pretty severe thing, to put an English-man to Death without a Jury, yet it must be remembred, that the Wisdom and Justice of our Nation, for very sufficient and excellent Reasons, have so ordered it in the Case of Piracy; a Crime, which . . . scarce deserved any Law at all[.] (Arraignment, 6)

Then came the all-important definition of piracy.

The English Word Pirate, is derived from a Word that signifies Roving, for Pirates, like Beasts of Prey, are Seeking and Hunting upon the Ocean for the Estates, and sometimes the Lives of the Innocent Merchant and Mariner: His Character and Description is thus: A Pirate is one who to enrich himself, either by Surprize or open Force, sets upon Merchants and others trading by Sea, to spoil them of their Goods or Treasure, and oftentimes sinking their Vessels, and bereaving them of their Lives: And ’tis no wonder if Piracy be reckon’d a much greater and more pirnicious Crime, than Robbery upon the Land, because the Consideration of the General Navigation and Commerce of Nations, is far beyond any Man’s particular Property: Besides, whereas Robbery upon the Land is most commonly from particular Persons; Piracy is from many, and oftner attended with the Death of others[.] (Arraignment, 6)

During the trial, the attorney providing legal assistance to the pirates raised some legal objections. One involved testimony that gold dust could not be identified as coming from a specific place and an expert witness backed up this claim. While the presiding judge agreed this was true, the “Coin’d Gold shewn in Court . . . appear plainly to be Portuguise,” and were permitted to be admitted into evidence. (Arraignment, 13)

When Meinzies pointed out that witnesses didn’t always agree on places where prey was captured and how many were on those ships at the time of boarding, the judge called these differences “very immaterial.” (Arraignment, 13)

Another objection concerned the charge against Quelch for murdering a Portuguese master, even though another man was identified as having done that deed. To back up this point, Meinzies cited “Molloy in his Chapter of Piracy.” In rebuttal, one of the prosecutors pointed out that

the same book says, That if the Common Law have Jurisdiction of the cause, all that are present, and assisting at such a Murder are principals. Now the Statute 28. Henry VIII. makes all Piracies, Robberies and Murders upon the high Sea, Tryable according to the Rules of the Common Law, as if they had been committed upon the Land. (Arraignment, 13)

Therefore, even if Quelch was not the killer, he was just as guilty because he had been present when the crime was committed.

A more complicated, yet stronger, objection, involved the fact “That the proceedings of this Court, in Examining, Trying and Condemning Pirates, shall be according to the Civil Law, and the Methods and Rules of the Admiralty.” (Arraignment, 13)

Civil Law prohibited an accomplice from testifying as “a Witness, being equally guilty with those he accuses.” (Arraignment, 13) Meinzies cited Sir Robert Wiseman’s The Law of Laws and Sir Edward Coke’s Institutes of the Lawes of England to support this.

At this point in time, the pirates who had turned Queen’s Evidence had yet to be pardoned. (Therefore, they were not impartial witnesses.) The Queen’s Advocate pointed out that medieval law permitted accomplice testimony under specific conditions, calling such witnesses “approvers.” (What he did not disclose was that doing so was considered mostly obsolete in 1704, and that the guidelines under which these particular accomplices would be permitted to testify had not been met.) He also pointed out that

in many Cases, there happens to be no other way to bring Criminals to their just Punishment, but by singling out some of their Company, that may be the least guilty, and make use of them to convict the rest. (Arraignment, 14)

As for their not having been officially pardoned yet, he added,

It has never been thought convenient to give Approvers their Pardon, until they have actually convicted their accomplices, lest after their having their Pardon they may refuse it; altho’ after they have convicted those they approve, their Pardon is ex Debito Justitiæ. This is the Opinion of my Lord Coke, in his Pleas of the Crown, and so has the practice been since. (Arraignment, 14).

It was clear that the Court was going to prosecute the pirates and more than likely find against them, but Meinzies was determined to do what he could for his clients. He tried one additional objection that spoke to an ambiguity in English law. It involved the contradiction between the statutes of Henry VIII and William III. English trials were conducted under the former, which allowed pirates “the benefit of a Jury,” whereas William’s statute, which allowed for pirate trials to be conducted in a vice-admiralty court instead of England, also stipulated that no jury would hear these cases.

Council to the Queen Thomas Newton kept mum on this point, but Queen’s Advocate Dudley chose to evade the issue.

As to the Method of the Court of Admiralty, ’Tis now about an Hundred and Three score Years since the Statute of Henry VIII. was made; a term long enough to make a Method of any Court, for ever since that time with the Court of Admiralty proceeded in cases of Piracy, according to the Rules of the Common Law; and then as to that other part of the New Statute, relating to Piracy, That says, this Court is to proceed according to the Civil Law. With submission, We understand it to be the summary way of proceeding by the Commissioners, and depriving the Prisoner of a Jury; for ’tis most certain that the late Statute against Piracy, doth strengthen and establish the Statute of Henry the VIII. And it would be very odd to suppose that the first Act of Parliament in these cases had rejected and condem’d, the method of the civil Law in the trial of Pirates, &c. The second Act of Parliament should be reconcil’d to that Method, to restore and set it up in the Plantations, especially when the Title of the New Act, is an Act, for the more effectual Suppression of Piracy, &c. (Arraignment, 14)

As Clifford Beal explains in Quelch’s Gold, Newton

must have known . . . that Meinzies was correct in his summation. More disappointingly, Meinzies did not press his objections further. He had done only the bare minimum to raise the points on behalf of his client; it would have been detrimental in the extreme to his future career to explode the case against Quelch and embarrass the entire provincial government. (Beal, 159)

Six days after the trial began, verdicts were announced. John Templeton was found not guilty because of his age. William Whiting was also cleared of the charges against him. The remaining twenty-three pirates were deemed guilty of the charges against them. On 30 June 1704, Quelch, Lambert, Scudamore, Miller, Peterson, and Roach were hanged. The other pirates spent the next year in gaol before being pardoned.

Judge pronouncing sentence by Pushkin and The Pirate's End by George Albert Williams
(Sources: Shutterstock.com and Dover's Pirates)

King William’s Act for the more effectual Suppressions of Piracy was valid for seven years.⁹ While in effect, this statute defined piracy as a robbery committed upon the sea. What was unfortunate was that it also included an expiration date. Once 1706 came and went, pirates had to be tried according to Henry VIII’s 1536 statute, which equated piracy with treason.

Not until 1717 would Parliament enact another law that firmly identified piracy with robbery, making it a crime of property. This statute, known as 4 George 1 c.11 or The Transportation Act, said this about pirates:

all and every person and persons who have committed or shall commit any offence or offences, for which they ought to be adjudged, deemed and taken to be pirates, felons or robbers, by an act made in the parliament holden in the eleventh and twelfth years of the reign of his late majesty King William the Third, intituled, An act for the more effectual suppression of piracy, may be tried and judged for every such offence in such manner and form

as outlined in Henry VIII’s 1536 statute. (Pickering, 475) Although that reference included the taint of treason, its inclusion here affirmed that the pirates would suffer death rather than transport. This law also dealt with those who could be considered accomplices of pirates.

IV. And whereas there are several persons who have secret acquaintance with felons, and who make it their business to help persons to their stolen goods, and by that means gain money from them, which is divided between them and the felons, whereby they greatly encourage such offenders: be it enacted . . . That where-ever any person taketh money or reward, directly or indirectly, under pretence or upon account of helping any person or persons to any stolen goods or chattels, every such person . . . shall be guilty of felony, and suffer the pains and penalties of felony, according to the nature of the felony committed . . . as if such offender had himself stolen such goods and chattels . . . . (Pickering, 473-474)

This guaranteed that those who colluded with pirates and shared in the profits would be just as guilty as the pirates and therefore, be subject to the same penalties as those accused of piracy. This statute also expanded the definition of pirate: a pirate wasn’t just a thief who conducted his business at sea; now he was also anyone who assisted pirates. Additional laws against piracy were enacted in 1721, 1739, and 1744, further cementing the definition as a property crime instead of a crime against the king.

Noted jurist William Blackstone also clarified the definition of piracy, as well as the laws and punishments pertaining to this crime, in his Commentaries on the Laws of England, which was published between 1765 and 1769.

[T]he crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society; a pirate being, according to Sir Edward Coke, hostis humani generis [enemy to mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defense, to inflict that punishment upon him . . . .

[A]ny commander, or other seafaring person, betraying his trust, and running away with any ship, boat, ordnance, ammunition, or goods; or yielding them up voluntarily to a pirate; or conspiring to do these acts; or any person confusing the commander of a vessel, to hinder him from fighting in defense of his ship, or to cause a revolt on board; shall, for each of these offenses, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal or accessory. By the statute 8 Geo. I. c. 24. the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in any wise consulting, combining, confederating, or corresponding with them; or the forcibly boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods overboard; shall be deemed piracy: and all accessories to piracy, are declared to be principal pirates, and felons without benefit of clergy. (Blackstone)

To be continued . . .

Part 1: Law and Order: Pirate Edition               Part 2: What Is a Pirate?               Part 3: The Evolution & Suppression Continues

Part 4: A Test Case

Notes:
8. Although Quelch’s trial was the first held in Colonial America per William’s statute (permitting vice-admiralty courts to try pirates), his was not the first pirate trial in the colonies. Hanna mentions one that occurred in Maryland in 1659; the sixteen accused were tried by a grand jury. Found guilty of piracy, they were evicted from the colony and told never to return.

9. Aside from identifying a pirate as a thief, what set William’s law apart from earlier statutes was that it also highlighted the difference between a pirate and privateer. The latter had a valid letter of marque, which meant it was still viable and in effect at the time of the plundering. If England was no longer at war or the commission had expired, the privateers were now considered pirates.


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