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Notes Introduction: Pirates? The Politics of Plunder, 1550–1650 1 Heliodorus, Ethiopian Story, trans. Sir Walter Lamb (London: Everyman, 1961). 2 Jaques Lezra, ‘Pirating Reading: The Appearance of History in Measure for Measure’, English Literary History, 56 (1989), 255–92. 3 Anon., A True Relation of the Life and Death of Sir Andrew Barton, a Pirate and Rover on the seas (London: Printed for E. W., 1630). All references are to this edition, and are given as line numbers. 4 John Russell, The Story of Leith (London and Edinburgh: Thomas Nelson & Sons, 1922), p.203. 5 See R. L. Mackie, King James IV of Scotland: A Brief Survey of His Life and Times (Edinburgh: Oliver and Boyd, 1958), pp.207–11. 6 See Athol Murray, ‘Robert Barton (d. 1540)’, Oxford Dictionary of National Biography (OUP, 2004); http://www.oxforddnb.com/view/article/69898; Norman Macdougall, ‘Barton, Andrew (c. 1470–1511)’, Oxford Dictionary of National Biography; http://www.oxforddnb.com/view/article/1594. 7 Russell, The Story of Leith, pp.205–6. 8 R. L. Mackie, King James IV of Scotland, p.207; Russell, The Story of Leith, p.204. 9 Russell, The Story of Leith, p.204. On the use and history of letters of marque see Janice E. Thomson, Mercenaries, Pirates and Sovereigns: State-building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994), pp.22–6. 10 R. L. Mackie, King James IV of Scotland, pp.208–10. 11 Acta Dominorum Concilii, MS, Edinburgh, General Register House, vol. XXII, fol.112. 12 Epistolae Jacobi Quarti, Jacobi Quinti et Maria Regum Scotorum, eorumque tutorum et regni gubernatorum, ad Imperatores, Reges, Pontifices, Principes, civitates et alios ab anno 1505 ad annum 1545 (Edinburgh, 1722), I, pp.120–1. 13 Edward Hall, Henry VIII, ed. Charles Whibley, 2 vols (London: T. C. & E. C. Jack, 1904), I, 37. 14 Edward Hall, Henry VIII, p.38. 15 Mackie, King James IV of Scotland, p.210. 16 N. A. M. Rodger, The Safeguard of the Sea: A Naval History of Britain 660–1649 (New York and London: W. W. Norton & Co, 1997), pp.168–9. 17 Edward Hall, Henry VIII, p.38. 18 Edward Hall, Henry VIII, p.38. 19 Edward Hall, Henry VIII, p.39. 20 See Christopher Harding’s chapter in this volume, pp.20–38. 21 See Francis J. Child, The English and Scottish Popular Ballads (Boston: Little, Brown & Co, 1857–8), 8 vols; Arthur Quiller-Couch, The Oxford Book of Ballads (Oxford: Clarendon, 1910); Thomas Percy, Reliques of Ancient English Poetry 3 vols, 4th edn (London: L. A. Lewis, 1839). 187 188 Notes 22 Child argued that ‘[t]he ballad (Henry Martin) must have sprung from the ashes of Andrew Barton, of which name Henry Martyn would be no extra- ordinary corruption’; Cecil Sharp considered that Henry Martin was the older ballad, and was probably recomposed as Andrew Barton in the reign of James I. 23 Henry Martin, in Child, The English and Scottish Popular Ballads, IV, no. 250. 24 See Maurice Lee, The Road to Revolution: Scotland under Charles I, 1625–1637 (Urbana: University of Illinois Press, 1985); Kevin Sharpe, The Personal Rule of Charles I (New Haven and London: Yale University Press, 1992), pp.771–8. 25 Sharpe, The Personal Rule, p.775. 26 See Rodger, The Safeguard of the Sea, pp.347–63. 27 Rodger, The Safeguard of the Sea, p.361. 28 Rodger, The Safeguard of the Sea, pp.361–2. 29 Rodger, The Safeguard of the Sea, p.271. 30 J. Ashburnham to E. Nicholas, 26 October 1627; quoted by Rodger, The Safeguard of the Sea, p.363: Roger Lockyer, Buckingham: The Life and Political Career of George Villiers, First Duke of Buckingham 1592–1628 (London and New York: Longman, 1981), p.283. 31 See Thomson, Mercenaries, Pirates and Sovereigns, pp.21–42. 32 Philip Gosse, The History of Piracy (New York: Longmans, Green & Co., 1932); David Cordingly, Under the Black Flag: The Romance and the Reality of Life among the Pirates (London: Random House, 1995); Life Among the Pirates: The Romance and the Reality (London: Abacus, 2003); Peter Earle, The Pirate Wars (London: Methuen, 2003); Jo Stanley, Bold in Her Breeches: Women Pirates Across the Ages (London: Pandora,1995); Kenneth R. Andrews, Elizabethan Privateering. English privateering during the Spanish War, 1585–1603 (Cambridge: CUP, 1964); Trade, Plunder and Settlement. Maritime enterprise and the genesis of the British Empire 1480–1630 (Cambridge: CUP, 1991); David Delison Hebb, Piracy and the English Government 1616–1642 (Aldershot: Scolar 1994); Janice Thomson, Mercenaries, Pirates and Sovereigns; Kris E. Lane, Pillaging the Empire: Piracy in the Americas 1500–1750 (London and New York: Armonk, 1997); Sir Godfrey Fisher, Barbary Legend: War Trade and Piracy in North Africa 1415–1830 (Oxford: Oxford University Press, 1957); Jacques Heers, The Barbary Corsairs Warfare in the Mediterranean 1480–1580 (London: Greenhill, 2003); Barbara Fuchs, Mimesis and Empire: The New World, Islam, and European Identities (Cambridge: CUP, 2003), pp.118–38; Daniel Vitkus, Turning Turk: English Theater and the Multicultural Mediterranean (New York and Houndmills: Palgrave, 2003), pp.207–62; Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700–1750 (Cambridge: CUP, 1987); Villains of All Nations: Atlantic Pirates in the Golden Age (Boston: Beacon Press, 2004); Hans Turley, Rum, Sodomy, and the Lash: Piracy, Sexuality, and Masculine Identity (New York: New York University Press, 1999). 33 Thomson provides working definitions of these different categories. See Mercenaries, Pirates, and Sovereigns, pp.22–6, 44–6. 34 Thomson, Mercenaries, Pirates, and Sovereigns, p.44; Klein, ‘“We are not pirates”: Piracy and Navigation in The Luciads, p.110. Notes 189 35 See Jerry Brotton, Trading Territories: Mapping the Early Modern World (London: Reaktion, 1997). 36 For discussion see Jeffrey Knapp, An Empire Nowhere: England, America and Literature from Utopia to the Tempest (Berkeley: University of California Press, 1992); Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), pp.149–92; Bruce McLeod, The Geography of Empire in English Literature (Cambridge: CUP, 1999), pp.11–31; Daniel Vitkus, Turning Turk, pp.1–24. 1‘Hostis Humani Generis’ – The Pirate as Outlaw in the Early Modern Law of the Sea 1 L. Oppenheim, International Law, ed. H. Lauterpacht, 2 vols, 7th edn (London: Longman, 1948), 1, p.559. Oppenheim further defines an interna- tional crime as one which ‘either every State can punish on seizure of the criminals, of whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent’, p.307. 2 The present international rules relating to maritime piracy are codified in Articles 100–7 of the 1982 UN Convention on the Law of the Sea. See Article 100 for a statement of the duty on the part of States to cooperate to the fullest possible extent in the suppression of piracy. 3 The death sentence for such piratical conduct was finally removed by Section 36 of the Crime and Disorder Act 1998. 4 Judgement of Sir William Scott, in the case of Le Louis, Forest in the High Court of Admiralty, 15 December 1817 (1817) 2 Dods. 210; quoted from 3 British International Law Cases 691, pp.704–5. The language used in the judgement presents the pirate as a wanton terrorist, while the slave trader appears more like an entrepreneur engaging in ‘transac- tions’. 5 Hillier, for instance, writes that ‘a number of other offences have since joined piracy in being regarded as capable of subject to universal jurisdic- tion’, and proceeds to discuss slave trading, war crimes and crimes against humanity. See Tim Hillier, Sourcebook on Public International Law (London: Cavendish, 1998), p.281. 6 Attorney-General of the Government of Israel v Eichmann, judgement of the District Court of Jerusalem, 36 International Law Reports 5 (1961), paragraph 12. In support of its argument, the Jerusalem Court later cites the historical example of dealing with piracy as a precedent for such ‘universal jurisdiction’ (paragraph 13). 7 This follows from the definition of piracy under international law, as an offence committed on the high seas and thus outside national jurisdiction, which ended at the outer limit of the territorial sea (see Article 101 of the 1982 Law of the Sea Convention; for a statement on the customary interna- tional law of piracy, see Oppenheim, International Law, note 1 above, at pp.746–7). It should be noted that piracy might be differently defined as a matter of national law: for instance, under English law piracy also included acts of slave trading, and piracy committed within the area of the territorial sea. However, taking a broad legal view there has for a long time been a 190 Notes core or classic understanding of piracy corresponding to the international legal sense, as an act perpetrated on the high seas and that is the sense of the term used in the discussion in this chapter. 8 Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), p.24. He makes the same argument in International Law (2nd edn: Oxford: Oxford University Press, 2004) p.15. I understand Cassese’s term ‘community value’ to convey a sense of deep-rooted and widely held moral imperative as compared to the more functionally motivated ‘joint interest’. 9 There are very few reported cases of criminal prosecutions of pirates in which courts have relied upon universal jurisdiction: see Alfred P. Rubin, The Law of Piracy (2nd edn, Ardsley, NY: Transnational Publishers, 1998), p.302; Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’, Harvard International Law Journal, 45 (2004), 183–92.
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