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Prosecuting Pirates: Procedural Inconsistencies in English

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Prosecuting Pirates: Procedural Inconsistencies in English PROSECUTING PIRATES: PROCEDURAL INCONSISTENCIES IN ENGLISH PIRACY TRIALS, 1701-1726 by: BRETT A. HEWITT Submitted in partial fulfillment of the requirements for the degree of Master of Arts Department of History CASE WESTERN RESERVE UNIVERSITY August 2017 CASE WESTERN RESERVE UNIVERSITY SCHOOL OF GRADUATE STUDIES We hereby approve the thesis of BRETT A. HEWITT Candidate for the degree of Masters of Arts. Committee Chair: Dr. Daniel A. Cohen Committee Member: Dr. Kenneth F. Ledford Committee Member: Dr. Gillian Weiss Date of Defense: May 4, 2017 *We also certify that written approval has been obtained for any proprietary material contained therein. 1 Table of Contents List of Tables 3 Abstract 4 Introduction 5 Foundations for the Inconsistencies and Irregularities of English Piracy Trials 12 Privateers or Pirates? Piracy Trials, 1701-1705 32 Sending a Message: Piracy Trials in South Carolina and The Bahamas 47 Rising Threat, Rising Convictions: The Rackam and Ogle Trials 54 Recrafting the Message: New England Piracy Trials, 1717-1726 64 Conclusion 73 Bibliography 77 2 List of Tables Table 1: Chart of Examined English Piracy Trials, 1701-1726 8 3 Prosecuting Pirates: Procedural Inconsistencies in English Piracy Trials, 1701-1726 Abstract by: BRETT A. HEWITT For nearly fifty years, beginning in the 1680s, the English government waged a costly war to rid the seas of pirates. While the eventual success of Britain’s imperial campaign to combat piracy lay in a multi-pronged approach, the heart of the offensive was Parliamentary legislation, which created a series of Vice-Admiralty Courts in the colonies facilitating an aggressive prosecutorial policy. My research examines why English piracy trials from 1701-1726 were so inconsistent and why they frequently deviated from English law and established precedent. I contend these variations in courtroom procedures were caused by four interrelated factors: various conceptualizations of the crime of piracy, different piracy statutes requiring the use of largely incompatible legal procedures, the evolving nature of piracy itself, and the constant pressure from imperial officials to secure a high rate of convictions for those accused. 4 I. Introduction On July 12, 1726, thousands of residents from all over the Massachusetts Bay Colony flocked to the Boston harbor to see a spectacle ripped from the pages of Imperial Rome— a pageantry of death. In place of the Colosseum sat a set of simple wooden gallows. Designed to reinforce the power of government and be a visual deterrent to anyone contemplating imitating the condemns’ actions in the future, they were the violent last step in a judicial process dispatching unlucky souls to their everlasting rest.1 However, on that day, convicted pirate William Fly had no intention of acting as the repentant pawn of imperial control. After climbing the gibbet, he chastised the executioner for his poor-knot making skills, re-fashioned the noose himself, and placed it around his own neck. Far from offering the typical plea to those in attendance to avoid his sinful ways, his final words warned captains to treat their sailors well and pay them on time. Otherwise, Fly suggested, they would likely meet the same bloody fate as his murdered captain.2 1 For more on state displays of power and public executions see, Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany, 1600-1987 (Oxford: Oxford University Press, 1996); Richard J. Evans, The Pursuit of Power: Europe 1815-1914 (New York: Penguin Random House, 2016); Michel Foucault, Discipline and Power: The Birth of the Prison (New York: Vintage Books, 1977). 2 “Boston News-Letter, July 7-14, 1726” (Boston: John Campbell), Western Reserve Historical Society Collections, Boston News-Letter: April 17/24, 1704- December 29, 1726. Cotton Mather wrote extensively on his time with Fly and his crew prior to their execution. He writes of Fly’s unrepentant attitude, “Fly, however, did not ask for forgiveness, did not praise the authorities, and did not affirm the values of Christianity, as he was supposed to do, but he did issue a warning. Addressing the port-city crowd thick with ship captains and sailors, he proclaimed his final, fondest wish: that ‘all Masters of Vessels might take Warning by the Fate of the Captain that he had murder’d, and to pay sailors their Wages when due, and to treat them better; saying, that their Barbarity to them made so many turn Pyrates.’ Fly thus used his last breath to protest the conditions of work at sea, what he called ‘Bad Usage.’ He would be launched into eternity with mutiny on his lips.” Cotton Mather, “The Vial Poured Out Upon the Sea: A Remarkable Relation of Certain Pirates… (Boston: T. Fleet, 1726),” 47-48, accessed from Early American Imprints, Series 1, no. 2779. 5 The term “Golden Age of Piracy,” an era spanning roughly 1660 to 1726, gives the false impression of uniformity. In reality, the period saw a dramatic reversal of fortune for pirates. During the second half of the seventeenth century, government- and community-supported privateering was firmly established as a legitimate part of the economic and defensive systems in the North American colonies. 3 Although the intent of privateering commissions through the sovereign’s issuing of letters of marque during wartime was to weaken the empire’s enemies by authorizing attacks on merchant vessels, privateers frequently targeted neutral and allied ships. Rarely did these officially- sanctioned pirates face criminal charges for exceeding the parameters of their commissions unless their activities drew unusual levels of attention, or their political or commercial backers fell out of favor with more influential leaders in London. Since the 1680s, English authorities had pressured colonial governments to crack down on pirates who entered their jurisdiction. Generally, these legal actions were targeted at individuals operating independently with no ties to powerful interests ashore. However, by the turn of the eighteenth-century, English and colonial officials began to view those operating outside their privateering commissions as sea-marauders with no claim to legal legitimacy. Officials also came to the realization that they were simply unable to control commissioned privateers outside the harbor, and therefore, drastically reduced the issuing of letters of marque. Reducing the number of privateers, however, did 3 Alfred Rubin, The Law of Piracy (Honolulu: University Press of the Pacific, 1988), 78-82, 100; Mark G. Hanna, Pirate Nests and the Rise of the British Empire: 1570-1740 (Chapel Hill: The University of North Carolina Press, 2015), 6-8; George Francis Dow & John Henry Edmonds, The Pirates of the New England Coast: 1630-1730 (Salem, MA: Marine Research Society, 1923), 1-19; Marcus Rediker, Between the Devil and the Deep Blue Sea (Cambridge: Cambridge University Press, 1987), 6-7; Peter Earle, The Pirate Wars (London: Methuen, 2003); Douglas R. Burgess, Jr., The Politics of Piracy: Crime and Civil Disobedience in Colonial America (New Hampshire: University Press of New England, 2015); Robert C. Ritchie, Captain Kidd and the War Against Pirates (Cambridge: Cambridge University Press, 1986). 6 nothing to curtail the rampant piracy plaguing the trade routes. In response, the Board of Trade combined pardons, new anti-piracy legislation, and, after the conclusion of The War of Spanish Succession in 1713, an increased Royal Navy presence to successfully dismantle the pirate threat in the Atlantic. While the eventual success of this imperial campaign lay in these collaborative efforts, the heart of the offensive was Parliamentary legislation which created a series of Vice-Admiralty Courts in the colonies, facilitating aggressive prosecutions. The execution of William Fly, a sailor-turned-marauder, in 1726 ended the last serious piratical threat to the American colonies and marked the successful culmination of this English campaign to extirpate piracy. Since the mid-1980s, several historians have analyzed, in considerable detail, the various types of piracy that flourished during the so-called “golden age,” the relationship between pirates and colonial communities, and the English government’s subsequent crackdown on the illicit activity during the first quarter of the eighteenth century. Much of the scholarship has also centered on reconstructing the social histories of both privateers and marauders. However, most historians of English piracy largely ignore the actual trial proceedings. This heavy emphasis on the cultural and social history of piracy has left a void in the legal interpretation of the evidence. This thesis seeks to help fill that gap, while contributing to the growing body of scholarship on piracy and its suppression, by undertaking a systematic study of all of the trials of American pirates—or of those active in the Americas—during the first three decades of the eighteenth century for which substantial documentation exists. This study analyzes thirteen piracy trials between 1701 and 1726, including proceedings held in London (1701); Boston, Massachusetts (1704, 1717, and two in 1726); Charles Town, South Carolina (1716, 1717, and two in 1718); 7 New Providence, Bahamas (1718); St. Jago de la Vega, Jamaica (1720); Cabo Corbo Castle, Guinea (1723); and Newport, Rhode Island (1723).4 Although the first two trials consisted of privateers accused of violating the terms of their commissions, the eleven 5 later cases involved defendants with no such legal ambiguity—they were sea-marauders. Table 1 Trial Name Date of trial Location Statute- Accused- (common vs. Convicted- civil law) Executed -The Arraignment, Tryal, and May 8-9, 1701 London 1536 Piracy Act 10-7-4 Condemnation of Captain Kidd (common law) -The Arraignment, Tryal, and June 13-21, 1704 Boston 1700 Piracy Act 25-23-5 Condemnation of Capt. John (combination of Quelch, And Others of his common and Company civil law) -The Trial of Nine Persons for Nov. 27-30, 1716 Charles Town 1536 Piracy Act 9-6-? Piracy (common law) -The Trial of Four Persons for June 21-July 3, Charles Town 1536 Piracy Act 3-3-3 Piracy 1717 (common law) -The Trials of Eight Persons Oct.
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