Pirates and Privateers

Around 1300, a “new” word entered written English: pirate. It referred to “a sea-robber, sea-plunderer, one who without authority and by violence seizes or interferes with the ship or property of another on the sea,” according to Etymonline. Earlier words did exist, depending on the language. Speakers of Old English (fifth to eleventh centuries) used sæsceaða, which meant “sea-scather,” while users of Medieval Latin referred to these marauders as pirata (a term that applied to a sailor, corsair, or a sea robber).

Ancient Greeks and Romans used words similar to “pirate.” Although we can recognize the similarity between their words and our word, the definition wasn’t quite the same. Why? Because of context. “[T]he words peirato and pirata both connot[ed] political legitimacy or belligerency” in Ancient Greece and Rome. For example, “the former being those included under the Roman hegemony, and the latter being those who lived a way of life outside Roman hegemony, and therefore illegitimate.” (Young, 7) In other words, if you lived by the rules of the Romans, you were a legal pirate. If you did not, your pirating was illegal.

Dionysus (panther) scattering the pirates, who are transformed into dolphins
North African Roman mosaic, Bardo National Museum, Tunisia, photographed by Dennis G. Jarvis, 2012
(Source: Wikimedia Commons)

Homer, a Greek poet, referred to them as “sea-wolves raiding at will, who risk their lives to plunder other men.” (Dolin, xxv-xxvi) Dio Cassius, who wrote Romaika (an eighty-volume compilation of Ancient Rome’s history), said,

There was never a time when piracy was not practiced, nor may it cease so long as the nature of mankind remains the same. (Dolin, xxvi)

Although written sometime between circa AD 150 and 235, his words proved prophetic. Piracy, no matter the time period, was a problem that required the intervention of law and order. By the time the renowned jurist Sir Edward Coke lived in the late sixteenth and early seventeenth centuries, pirates had gone from simple thieves who plied their craft at sea to hostis humani generis (enemy of mankind), a term first associated with pirates by Marcus Tullius Cicero (106 – 43 BC).

Marble bust of Marcus Tullius Cicero at age 60 by unknown sculptor (Source: Wikimedia Commons)
Frederick II and his falcon from his book De arte venandi cum avibus (The Art of Hunting with Birds), 1240s, artist unknown (Source: Wikimedia Commons)
Edward III wearing Order of the Garter miniature from illuminated manuscript Bruges Garter Book by William Bruges, circa 1430s (Source: Wikimedia Commons)
Sir Edward Coke, Chief Justice of the King's Bench, portrait by Gilbert Jackson, 1615, in Guildhall Art Gallery (Source: Wikimedia Commons)

One of the earliest laws against piracy was passed by Holy Roman Emperor Frederick II in 1220. It likened pirates to “enemies of Christendom.” (Barbary, 21) Pirates had become such a problem for the Genoese that they established the Office of Pirates in 1301, to pay recompense to foreign merchants who fell victim to pirates from the city. Before the middle of the fourteenth century, England labeled piracy as a crime of common law and such criminals were prosecuted in the assizes. Instead of rendering verdicts according to the facts in the case, the juries saw the accused as kindred spirits because they were peers. Thus, many trials ended in acquittals for the defendants. During Edward III’s reign, this happened so often that he proclaimed piracy a form of treason, and as such, would henceforth be tried in a court of Admiralty. A schism erupted between the crown and the assizes, and jurisdiction remained an issue until Henry VIII’s reign (1509-1547).

During the reign of his father (Henry VII, 1584-1509), plundering at sea had gotten way out of hand. “[D]ivers and manifold spoliations and robberies be daily had, committed, and done upon the sea”; the victims, often his allies, complained persistently. (Tudor, 25) The offenders even had the gall to sell the ill-gotten wares in English ports “contrary to the laws and statutes of this land, in violation and in breach of the foresaid leagues, confederations, and amities, and in grievous contempt of our said sovereign lord.” (Tudor, 25) Therefore, King Henry issued a proclamation “Ordering Punishment of Piracy against England’s Allies” on 17 November 1490.

Our said sovereign lord the King . . . straightly chargeth and commandeth that no manner of person, of what estate, degree, or condition he be of, from henceforth comfort, take, nor receive in any of the said ports or other places of this his realm any of the said misdoers; nor any merchandises or goods by them spoiled or taken from any of the said subjects in any manner of wise, buy or otherwise receive; upon pain of forfeiture of the same merchandises or goods, in or to the value thereof, for restitution thereof to be made to the parties grieved, and upon pain of imprisonment of their bodies and otherwise to be punished at the King’s will. (Tudor, 25-26)

In other words, pirates who dared to attack friendly ships and dared to sell their booty would lose their property and be imprisoned. If further punishment was in order, the king could inflict whatever he deemed fitting.

His son, Henry VIII, ordered his navy to pursue pirates and other wayward sea rovers. Four years after his appointment as Deputy Lord of Ireland, Sir William Skeffington encountered a pirate named Broode in 1534. Broode’s ship wrecked on the shore near Drogheda, and the mayor and his men rounded up the pirates. In February 1535, they were hanged, drawn, and quartered following their trial. But not for piracy. From the Crown’s perspective, Broode and his men had committed acts of treason against the king.

Just as Queen Elizabeth excused Lady Killigrew’s egregious acts, so could juries. This stemmed from the jurors’ perception of who was a pirate and what constituted piracy, regardless of what the prosecutor and judge told them. Sometimes, this was because those who committed such acts did so to survive, especially during Tudor times. On other occasions, those who sat in judgement knew the accused; or had dipped into their purses to acquire pillaged goods for what they deemed a fairer price than if the items had first gone through customs; or had provided necessities that England refused to supply. Every now and then, jurors didn’t believe defendants were guilty of piracy if they attacked ships belonging to non-Christians.

Henry VIII by Hans Holbein the Younger, 1540 (Source: Wikimedia Commons)
Elizabeth I, Armada Portrait by unknown artist, circa 1588 (Source: Wikimedia Commons)
Thomas Stukeley by Antonis Mor, 1569 (Source: Wikimedia Commons)

In 1565, Thomas Cobham and Thomas Stukeley were particularly notorious for their “adventuring.” They were arrested in May and put on trial, but the jury acquitted Cobham. Since the High Court of Admiralty judge suspected this might happen – he thought some or all of the twelve jurors “were biased or perhaps bribed” – he took the precaution of only allowing the Crown to charge the accused with a few crimes. This allowed him to have Cobham rearrested on new charges after the jury “had absolved the prisoner.” (Appleby, 95) Then the Admiralty judge confronted the jury. Having rendered a false verdict, they had two options: pay a fine of £20 or serve six months in gaol. All were also “put in the pillory with papers stuck on them like a cuirass.” (Appleby, 95)

Cobham was tried again and, this time, he was

to be taken to the Tower, stripped entirely naked, his head shaved, and the soles of his feet beaten, and then, with his arms and legs stretched, his back resting on a sharp stone, a piece of artillery is to be placed on his stomach too heavy for him to bear but not heavy enough to kill him outright. In this torment he is to be fed three grains weight of barley and the filthiest water in the prison until he die. (Appleby, 95)

His relatives weren’t keen on this punishment, so they sought a pardon. Before their request was granted or denied, Cobham claimed benefit of clergy, which allowed him to show that he could read Latin just like priests could. Therefore, being literate, “he could not be done to death, by the laws of the realm.” (Appleby, 95 & 97) Thomas Stukeley, on the other hand, escaped even being tried because the evidence against him was too weak.

World and national events can also impact the context of what constitutes piracy, which in turn, affects how laws are interpreted. This interpretation can then change the laws themselves. For example, piracy is an act of treason against whoever rules the country under English law. Then a period of unrest comes during the late seventeenth century over who shall rule the country – a Catholic monarch or a Protestant one. This results in the Stuart king, James II, fleeing England after his son-in-law, William of Orange invades. As far as Parliament sees it, James has abdicated. James disagrees; he’s merely ruling from afar and prepares to regain his throne by launching an attack from Ireland in 1689. One step in accomplishing this goal is to grant letters of marque to eight privateers, but when these men are captured and stand trial five years later, they are charged with treason. As far as the court sees this, “King James had lost his sovereignty, in that he has parted with his crown, and consequently with the power of granting such commissions.” (Craze, 662) Per this thinking, James’s letters of marque are invalid and therefore, the men are committing piracy.

James II of England by John Riley, 1660s (Source: Wikimedia Commons)
William of Orange, later William III of England by Godfrey Kneller, 1680s (Wikimedia Commons)

Enter William Oldish (Oldys), an Admiralty lawyer for the defense who doesn’t rubber stamp this conclusion. To his way of thinking, everyone and every institution is equal before the law and the law must be applied the same without regard to politics and religion. Since James II is forced to flee England, his abdication is involuntary and isn’t recognized by international law. Therefore, he 

still had a right to wage war and to deploy the tools of war at his disposal, such as the power to grant letters of marque, because ‘a king may be deposed of his crown, but cannot lose his right.’ (Craze, 663)

Of course, this conflicts with the government’s perspective, so Oldish is ousted as the defense advocate. Someone more compliant is assigned to the case and the trial proceeds.

While the combination of Irish identity and probable Catholicism, plus allegiance to James, weighted the trial heavily against the men, the Court convicted only six of the men, with the two executions being for treason, not piracy. Two years later, the court pardoned the remaining four on condition of transportation to America for seven years. (Craze, 665)

Even though this case involved privateers, it impacted the question at hand: What was a pirate? The legal definition changed, which resulted in a change in the law. Until this time “piracy” was considered a crime of treason under the 1536 Offences at Sea Act, and this law served as the basis for the privateers’ trial in the first place.³ Based on Oldish’s thinking, loyalty to sovereign was a matter of personal choice rather than an obligation. This contradicted the definition of treason, and therefore, what the privateers did was actually steal property rather than defy the king. As a result, Parliament passed the 1698 Piracy Act. There was just one caveat: this law had an expiration date of 1705. Three years later, the Cruizers and Convoy Act or 1708 Prize Act was enacted, essentially resurrecting that old favorite, the 1536 Offences at Sea Act, which defined piracy as an act of treason. Another nine years passed before Parliament changed piracy back to a crime of property, rather than treason, with the 1717 Piracy Act.

What was the 1536 Offences at Sea Act? This piece of legislation came into being during Henry VIII’s reign. It was also a time when a primary purpose of the English navy was to ferry troops from home to wherever they were needed abroad, usually mainland Europe but sometimes elsewhere in the British Isles, as opposed to defending the seas. That task fell to armed merchant ships that attacked the enemy’s commerce (basically the same thing that pirates did). Not all of these armed merchant ships did so legally, and King Henry needed a way to prosecute those who plundered without the required legal writ, usually a letter of marque and reprisal. He also strove to rectify the fourteenth-century schism between the courts of assizes and the courts of admiralty. Thus, Parliament enacted 28 Henry VIII c. 15 (also known as the 1536 Offences at Sea Act).⁴

Where Traytors, Pirates, Thieves, Robbers, Murtherers and Confederates upon the Sea, many Times escaped unpunished, because the Trial of their Offences hath heretofore been ordered, judged and determined before the Admiral, or his Lieutenant or Commissary, after the course of the Civil Laws,

(2) the Nature whereof is, that before any Judgment of Death can be given against the Offenders, either they must plainly confess their Offences (which they will never do without Torture or Pains) or else their Offences be so plainly and directly proved by Witness indifferent, such as saw their Offences committed, which cannot be gotten but by Chance at few Times, because such Offenders commit their Offences upon the Sea, and at many Times murther and kill such Persons being in the Ship or Boat where they commit their Offences, which should witness against them in that Behalf; and also such as should bear witness be commonly Mariners and Shipmen, which, because of their often Voyages and Passages in the Seas, depart without long tarrying and Protraction of Time, to the great Costs and Charges as well of the King’s Highness, as such as would pursue such Offenders:

(3) For Reformation whereof, be it enacted by the Authority of this present Parliament, That all Treasons, Felonies, Robberies, Murthers and Confederacies hereafter to be committed in or upon the Sea, or in any other Haven, River, Creek or Place where the Admiral or Admirals have or pretend to have Power, Authority or Jurisdiction, shall be inquired, tried, heard, determined and judged . . . as if any such Offence or Offences had been committed or done in or upon the Land;

(4) and such Commissions shall be . . . directed to the Admiral or Admirals . . . to hear and determine such Offences after the common Course of the Laws of this Realm, used for Treasons, Felonies, Murthers, Robberies and Confederacies of the same, done and committed upon the Land within this Realm. (Rubin, 397-398)

In essence, whether you were accused of piracy, theft, robbery, and/or murder, or participated in one of these acts, you would be tried under the same rules and regulations as a traitor. And your trial would be conducted on land. Before 1536, suspects were tried under civil law and, if convicted, were sentenced to death. The problem was in order to receive that judgment, the accused pirate had to freely confess his crime(s) or impartial witnesses to the crime must testify to what they saw. The only way a pirate was likely to fess up was if the authorities tortured him, which left eyewitness testimony necessary. Except such witnesses could only swear to those events that they actually saw and they could not have been a participant in the crime, or have an axe to grind, or have an ulterior motive for bringing down the pirate. It was also difficult to get such witnesses to testify because of the transitory nature of being seamen; most of their time was spent at sea rather than on land, making it difficult for them to be available for the trial. This supposed that the officials could even find such a witness, since many were killed by the pirates to prevent them from testifying in the first place.

To alter such an outcome of piracy trials, the judges were now required to hear these cases under Admiralty rules, although actual verdicts of guilt or innocence would be determined by “twelve lawful Men.” (Rubin, 398) One additional modification was that the accused could no longer claim “Benefit of his or their Clergy,” to escape punishment.⁵ (Rubin, 398)

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

Part 4: A Test Case

Notes:
3. At the time, the only other law that had been passed since that year was the 1670 Piracy Act. It did not serve the Admiralty court's purposes because it required the master and seamen of a merchant ship to stop the pirates from taking their ship. (This placed the onus on the victims, rather than the government, when it came to suppressing piracy.)

4. The 1536 Offences at Sea Act was extended to Ireland in 1613, making Irish law align with English law.

5. The 1536 Offences at Sea Act would not be repealed until 2003.


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