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