Cindy Vallar, Editor & Reviewer
P.O. Box 425, Keller, TX 76244-0425
Books for Adults - NonfictionThe Legal History of Pirates & Privateers Revolutionary War Law and Lawyers
In school we learn that in the late 1700s American colonists rebelled against the injustices England imposed on them. Representatives from the thirteen colonies met in Philadelphia, Pennsylvania and, after much debate, declared independence and established the United States of America. An army was formed, George Washington became its commander, and battles were fought. Sounds fairly simple until you read Thomas Shaw’s Revolutionary War Law and Lawyers. He takes you behind the scenes to show us, from a legal perspective, that our founding fathers did far more than just declare themselves no longer subject to British rule. They did not just snap their fingers and we became a new nation. Many different matters were taken into account and weighed in order for them to risk all that they held dear to make this new country viable enough to succeed.
Chapter 1 is concerned with legal issues that prompted the rebellion and led to independence. These are divided into three categories: how funds were raised, what rights individuals had, and what steps were taken to give this new nation a voice. Some of the laws and issues discussed here concern the Sugar Act, the Stamp Act, the Tea Act, taxation without representation, forcing civilians to allow troops to live in their homes, smuggling, freedom of speech, seizing individuals against their wills, the Intolerable Acts, the Continental Congress, and declaring independence. Some of the cases and documents that illustrate and define these legal issues are John Hancock’s smuggling, the Boston Massacre, the Gaspee Affair, the Boston Tea Party, pressing American sailors to serve aboard British ships, Common Sense, Letters of Marque, and the Declaration of Independence.
The new nation also had to show it was a legitimate entity and define what powers it had versus what rights the states had. Since the states were no longer colonies, each had to create a new political framework in which to operate. The break with England necessitated new allies had to be forged. Money was essential to wage war, yet the newly-formed United States had no national treasury and no national currency. These key concepts are discussed in chapter two. Clarification of these legal issues is demonstrated through studies on Virginia, Benjamin Franklin, Silas Deane, the Howe Peace Initiative, the Carlisle Peace Commission, taxation, protests, and loans.
Chapter three focuses on traitors, espionage, and supplying the army with what it needed. Not all the colonists sided with the rebels. Some remained loyal to England, which created problems for the new government. It also had to address concerns regarding the logistics and administration of military supplies. Among the legal issues represented in this chapter are: war profiteering, military stores, oversight, proving loyalty, defections, sedition in both the United States and Great Britain, capturing spies, abetting a spy, and sabotage. Cases that illustrate these issues include regulating the quartermaster and ordnance departments, bills of attainder, treason in Virginia and Pennsylvania, banishing Quakers, John André, John the Painter, and Bathsheba Spooner.
Americans and Britons weren’t the only ones who participated in the Revolutionary War. Frenchmen, Spaniards, Germans, Canadians, and Native Americans also played significant roles. Chapter four pertains to the land war: armies and militias, military regulation, and conduct of the war. The legal issues involve raising militias, building an army from scratch, impressment, rules of military conduct, courts martial, oversight, and prisoners of war. Among the cases examined are African American and Native American recruits, conscientious objectors, caring for the wounded, articles of war, treatment of prisoners, martial law, trials at Valley Forge, mutinies, theft, and murder.
While the majority of battles took place on land, naval forces also played significant roles. This is the focus of chapter five. At the time, the United States had no navy and had to build one from scratch to fight a veteran enemy with warships that globally protected British interests. The states had some vessels to protect their waters, privateers played a significant role in waging war at sea. Legal issues discussed include fitting out ships, rules of engagement, mutiny, corruption in naval administration, commissions, articles of enlistment, deciding the legality of captures, courts of admiralty, owners suing captains, Crown rights versus Admiralty rights, surrender, and claims against the government. The cases and documents studied here include navy rules, privateering rules, the Battle of Block Island, Dudley Saltonstall, the Warren, Admiral Augustus Keppler’s and Vice-Admiral Hugh Palliser’s courts marital, the Gloucester, the Resolution, the Hibernia, Fort Washington, Saratoga, Charleston, and Yorktown.
Scattered throughout the book are short profiles of prominent lawyers and judges who were involved with the cases discussed within each chapter. Some are well-known, others aren’t. A short sampling of these men is Patrick Henry, William Blackstone, John Dickinson, John Adams, Thomas Jefferson, Josiah Bartlett, Silas Deane, Charles Carroll, William Cathcart, Caesar Rodney, Timothy Pickering, Samuel Chase, Stephen Hopkins, Nicholas Biddle, William Paca, James Marriott, James Madison, John Jay, John Marshall, James Monroe, and Alexander Hamilton. An inclusive list of these men can be found in the appendix as well. The book also has footnotes and an index.
This is Shaw’s third book in a trilogy that examines 200 legal issues pertaining to global conflicts in which the United States participated. He brings together major legal issues, cases, and people who were involved in them in a single volume, but not with the intent of being either a history book or a legal monograph. Rather it is a book that gives readers a unique perspective on the war and the statutes and cases surrounding it. He also demonstrates that there are two sides to every issue with his inclusion of British laws and cases in addition to those of the United States. In his introduction, Shaw writes, “My intent with this book . . . is to entertain, educate and inform readers . . . .” (xvi) In this endeavor he succeeds. He deftly shows the complexity of war and the founding of a new nation while doing so in a manner that engages the reader.
Time and again, history shows that pirates were useful to the State until they were not. When the hue and cry of law-abiding citizens, influential ministers, and angry foreign governments became too great to ignore, governments were forced to take action to suppress this illegal marauding. The primary means for achieving this was through enacting laws.
To some degree the same holds true for privateers. The outcry this time consisted of calls for retribution and recompense. When state-supported navies were in their infancy or non-existent, governments turned to privateers to protect their country’s interests. Those in power, however, instituted rules and regulations to make certain that this legal plundering did not devolve into outright piracy.
One of the earliest laws against piracy, lex de piratis persequendis, was passed in Ancient Rome. Rather than strike at the pirates at sea, it targeted their safe havens ashore. At the same time, the law provided Pompey the Great with the necessary legal means to eradicate these villains. Centuries later, Edward I issued an edict in 1296 that became the precursor to later British statutes regulating privateering. It pertained to the taking of prizes and established courts to decide whether the capture was legitimate or not. General histories of piracy and privateering mention such enactments, raising our curiosity, but fail to truly inform. The Legal History of Pirates & Privateers, which is written by a lawyer, changes this. It is neither a general history nor a legal textbook; instead, it explains the laws and provides illustrations of issues raised when actual cases were brought before various courts in Britain, her American colonies, and the United States.
The book is divided into five chapters and in each chapter, Shaw first discusses the statutes and what they entail, then he identifies and analyzes the legal issues contested during trials. The latter are highlighted in boxes before being delineated. In the case against Calico Jack Rackham and his crew, for example, the legal issues are: a) Charged with conspiracy to commit piracy; b) Special proofs needed for women pirates; and c) Charged with piracy for socializing with pirates. (35)
Laws pertaining to maritime piracy are the focus of the first two chapters. Chapter one deals with British statutes enacted between the reigns of King Henry VIII and Queen Victoria. The second chapter concerns American statutes from the time Samuel Huntington served as president of Congress to Abraham Lincoln’s presidency.
Chapter three ties the first two and last two chapters together by looking at legal documents pertinent to proving either the guilt or innocence of pirates, or whether a seized ship and its cargo was a legitimate prize of privateers. Examples of these documents are articles of agreement (including the differences between those of pirates and those under which privateers sailed) and ship’s papers, such as ship registrations and bills of lading.
The final chapters examine privateering. Chapter four concerns British laws from Edward III to Victoria, whereas chapter five focuses on the American statutes between John Hancock and Lincoln. As with previous chapters, court cases illustrate notable points. For example, one case involves the Lucretia, a vessel that was captured, recaptured, and recaptured again. The legal issues of import in this trial concern: a) Determining captor when same prize taken twice by British ships, and b) Allocating prize between captor and re-captor. (195)
The book includes an afterword that discusses the Paris Declaration of 1856, following the Crimean War. This maritime declaration attempted to bring about a global end to privateering, since most nations now had standing navies and no longer supported state-sponsored legal plundering. Mention is also made of modern-day piracy and how laws of the past define piracy today. Although there is no index, an appendix provides a quick reference to the more than 200 legal issues discussed in the book.
Shaw, who is himself a lawyer, delves into legal particulars in a way that lay readers easily understand, even though his target audience is other lawyers. In the foreword, he writes that his goal “is to have a single source to reinterpret often told tales of pirates and less often told tales of privateers, viewing them through the prism only of the governing legalities, while making the topics light enough to easily read for fun.” (xi) He adeptly achieves this objective. The Legal History of Pirates and Privateers fills the void between a plethora of general and academic treatises on privateering and the suppression of piracy. Equally compelling is the fact that Shaw selected trials not because of the defendants’ notoriety, but because of the legal consequences of their actions. This allows readers to meet the infamous and the forgotten, as well as to be introduced to judges and attorneys who participated in these endeavors to suppress piracy or adjudicate privateering lawsuits. This illumination of details often missing from other volumes enlightens the reader and provides a valuable resource for any library dealing with these aspects of maritime law.
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