Toby Gane Mphil Thesis

ASPECTS OF ENGLISH LAW CONCERNING PIRACY AND PRIVATEERING, 1603-1760 Toby Gane A Thesis Submitted for the Degree of MPhil at the University of St Andrews 1990 Full metadata for this item is available in Research@StAndrews:FullText at: http://research-repository.st-andrews.ac.uk/ Please use this identifier to cite or link to this item: http://hdl.handle.net/10023/6260 This item is protected by original copyright This item is licensed under a Creative Commons Licence ASPECTS OF ENGLISH LAW CONCERNING PIRACY AND PRIVATEERING, 1603 - 1760 TOBY GANE UNIVERSITY OF ST ANDREWS ASPECTS OF ENGLISH LAW CONCERNING PIRACY AND PRIVATEERING, 1603 - 1760 A DISSERTATION SUBMITTED AS PART FULFILMENT FOR THE M.Phil (Mode B) DEGREE IN MARITIME STUDIES. TOBY GANE UNIVERSITY OF ST ANDREWS 1990 CONTENTS Page PREFACE 1 INTRODUCTION 2 THE ADMIRALTY AND VICE- ADMIRALTY COURTS 6 THE LAW OF PRIZE 11 LETTERS OF MARQUE AND REPRISAL 18 THE SPECIAL COMMISSION OF OYER AND TERMINER 25 A PUNISHMENT TO FIT THE CRIME 27 INTERNATIONAL TREATIES 30 CONCLUSION 33 BIBLIOGRAPHY 36 ASPECTS OF ENGLISH LAW CONCERNING PIRACY AND PRIVATEERING 1603 - 1760 PREFACE Piracy and Privateering are certainly much written about subjects, and there is indeed extensive literature concerning many aspects and facets of the complicated history of the subjects. A glance at the Gosse Collection on piracy at the National Maritime Museum or a search through the archives of the British Library will illustrate this point admirably. It came to my attention, however, that one aspect of piracy and privateering that had not so much been overlooked, but had never really been treated as a separate subject, was the law. Surprisingly even Charles Wye Kendall of the Middle Temple and Barrister-at-Law, in his work Private Men-of-War had only scantily covered this area, homogenised into the whole text of his book. There is no doubt that both piracy and privateering have had differing effects on trade and commerce in seventeenth and eighteenth century Europe and Anglo-America and hence had a wide social context and significance. As a result historians have taken the subjects, especially privateering, seriously although it has often been overshadowed by the historian’s preference for writing about the Navies of Europe. As a result of this social significance it was only a matter of course that a myriad of laws and statutes sprung up to control, inhibit, deter and prevent, around these controversial ways of life. It has been my intention, therefore, to try to give an account of the main aspects of the law as it reacted to the post-Elizabethan period of piracy and privateering up until its decline in the eighteenth century. Two limiting factors must be born in mind by readers, firstly time: it has been scarcely six months from conception to completion; and secondly the length of the essay has considerably reduced the scope of the work. As a result I do not pretend to have covered anywhere near the full scope of the topic, and there is indeed much more work that could be done to throw light on this subject. Nor do I pretend to have got it completely right, and would welcome constructive criticism. It is hoped that I have shed some light and I would venture to suggest that, if nothing else, I have pooled some knowledge of an aspect of piracy and privateering that has not been pooled in such a way before. The sources of information I have used are a mixture of primary and secondary. The manuscripts and the acts of Parliament I have used all came from the National Maritime Museum as did some printed works dating from 1726 to the present. Other printed books came from the British Library. Thanks are therefore due to the staff of both the National Maritime Museum and the British Museum. Special thanks go to Dr Colin Martin and Professor Christopher Smout for their concern and help at very short notice. INTRODUCTION Piracy, and its sister occupation, Privateering, have captured the imaginations of millions of people as a romantic and daring occupation, made familiar to us by the literature of the 18th and 19th centuries and, given a Hollywood facelift, piracy could appeal to almost anyone. The harsh reality of this often cruel way of life could not be more different. Piracy in the 17th and 18th centuries was a barbaric and dangerous occupation that would have demanded steel nerves and a total lack of remorse. It was a hazardous and cruel life as a sailor on the high seas, but pirates and privateers doubled the danger and often took their lives in their own hands, and took those of others without thinking twice. The lure of riches was a strong one indeed for anyone who could take the hardships. Fortunes were made and lost in this way. The reason for which I have isolated this period of study is that the period saw an interesting change in England’s overseas policy. Privateering had seen great days at the latter half of the 16th century with the rise of such infamous figures as Francis Drake and John Hawkins. This period of entrepreneurial venture and free-for-all treasure hunting in the form of legal private warfare was to draw to a close at the start of the 17th Century (Senior 1976, 7). This change was dominated by the Succession of the Stuarts over the Tudors. Elizabeth’s reign had been earmarked by 20 years of sporadic war with Spain, which, although it had been a very costly exercise had also served to give wealth to many enterprising privateers. Suddenly with the succession of James Stuart, England was thrown into a long period of peace. This ultimately led to a massive increase in piracy. Now British privateers had no legal enemy, and a rapid degeneration into piracy was their only alternative if they wanted to keep a healthy income of Prize (Senior 1976, 7-11). An agreement with Spain was made that the English privateers might be kept out of the West Indies and that if they should fall into the hands of the Spaniards they might be put into the hands of the Spanish Inquisition, much to the distaste of the English seamen (Macintyre 1975, 29). This allowed the British and the French to freely ship contraband. This in turn forced the Spaniards to move from the north and west coasts of Hispaniola. The English and French then settled, and hunted the cattle and pigs that had been left behind and gone wild, and by ‘boucanning’ or smoking the meat they could preserve it and sell it, and the hides, to the seamen in the Caribbean. These men became known as ‘Buccaneers’ and often turned their hands to piracy when the cattle ran low. But the early period of the 17th century was not the only time that saw an increase in piracy due to political events. The Civil War was to provide the germination for the seed that had been waiting for its chance. Too many years of peace had made pirates or even merchants ready to jump at the chance to hunt for prize legally. British merchant shipping had suffered during the Civil War from the 2 INTRODUCTION privateers of both the Commonwealth and Royalist factions “as well as from the usual pirate craft that lay off the African Coast” (Crump 1931, 92), while the English could do little to protect merchant shipping. The end of the Civil War brought a near end to this period of Royalist privateering, and the new government was posed with the problem of monopolising English trade in the West Indies and securing this trade against piracy and privateering. This can only make one think they could have bitten off more than they could chew, as whilst they clearly reduced the level of piracy and privateering, they served only to cause friction with the Dutch whose trade suffered considerably. This set off a chain of events out of which the privateers and pirates could only have benefited. Firstly, a war with the Dutch inevitably came about, once over a war with Spain ensued. “These years of naval war saw an enormous growth of privateering and piracy, the natural corollary of privateering. Much of the fighting in the West Indies was carried out by private men-of-war sailing under letters of Marque, and the profits were sufficiently great to attract capital and men in considerable numbers. When letters of Marque could not be obtained, such privateers frequently turned pirate, so that peace at home did not mean peace at sea. Thus, the policy of the Commonwealth let to an increased need for machinery to enforce trade laws and to deal with prize and piracy” (Crump 1931. 93). The Commonwealth’s emphatic need to establish itself in the divided colonies, and to monopolise (i.e. hold most of the trade, and allow the Dutch as little as possible) the trade had led inadvertently to war, through which an increase in private and illegal war, meant an increase in piracy. It was partly because of this that with the Restoration and Coronation of Charles II in 1660, that a new special appointment was made that was to extend the power of the Admiralty to the Colonies. This appointment was that of Lord High Admiral of the Plantations. ‘‘for the greater part of the period 1650-1697, there was in existence a body of men responsible for administering the colonies” (Crump 1931, 93). More of which is given in later chapters. By the end of the 17th century this body of men had developed into the Board of Trade (established 1696).

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