sign in sign up
<<
Home , Bartholomew Roberts, Chaloner Ogle, Charles Harris (pirate), Charles Vane, Edward Low, Henry Every

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 Trials 12

Privateers or Pirates? Piracy Trials, 1701-1705 32

Sending a Message: Piracy Trials in South Carolina and 47

Rising Threat, Rising Convictions: The Rackam and Ogle Trials 54

Recrafting the Message: New 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 , 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 Bay

Colony flocked to the 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 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: in Germany, 1600-1987 (Oxford: Oxford University Press, 1996); Richard J. Evans, The Pursuit of Power: Europe 1815-1914 (: Penguin Random House, 2016); Michel Foucault, Discipline and Power: The Birth of the (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. 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 on his lips.” , “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 “,” 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, 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 .

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 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, Wars (London: Methuen, 2003); Douglas R. Burgess, Jr., The Politics of Piracy: Crime and Civil Disobedience in Colonial America (: 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 , new anti-piracy legislation, and, after the conclusion of The

War of Spanish Succession in 1713, an increased 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 —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 , Bahamas (1718); St. Jago de la Vega, (1720); Cabo Corbo

Castle, (1723); and Newport, (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 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. 18-30, 1717 Boston 1700 Piracy Act 8-6-6 Indited for Piracy (civil law) -The Tryals of Major Stede Oct. 28- Nov. 12 Charles Town 1536 Piracy Act 33-29-22 Bonnet, and other Pirates, viz. (1718) (common law) -The Trial of Twenty-four Nov. 19-24, 1718 Charles Town 1536 Piracy Act 24-19-19 Persons (common law) -The Trial and Condemnation of Dec. 10-11, 1718 New Providence, 1700 Piracy Act 10-9-8 Ten Persons for Piracy Bahamas (civil law) -The Tryals of Captain John Nov. 16, 1719- St. Jago de la 1700 Piracy Act 29-27-21 Rackam and other Pirates, viz. March, 22 1720 Vega, Jamaica (civil law) -The Tryal of all the Pyrates March 28- April On board the HMS 1700 Piracy Act 165-91-52 Lately taken by Captain Ogle, 20, 1722 Swallow, Guinea (combination of on Board the Swallow Man of civil and War, on the Coast of Guinea common law) -Tryals of Thirty-Six Persons for July 10-12, 1723 Newport, Rhode 1700 Piracy Act 36-28-26 Piracy Island (civil law) -The Trials of Sixteen Persons July 4-5, 1726 Boston 1700 Piracy Act 16-4-3 for Piracy (civil law) -The Trials of Five Persons For Oct. 4-5, 1726 Boston 1700 Piracy Act 5-5-5 Piracy, Felony, and Robbery (civil law)

4 See trial chart (table 1). 5 For more information on the differences between officially sanctioned and community supported privateers, and sea-marauders, see Ritchie, Captain Kidd, 11-26.

8 The English suppression of Atlantic piracy during the first three decades of the eighteenth century provides an important case study of both "Anglicization" and "legal pluralism," two concepts widely embraced by colonial historians and legal scholars over the past several decades. During the eighteenth century, English colonies in North

America experienced a gradual but steady progression toward the adoption of English customs and traditions in several aspects of colonial culture, including hierarchical structure, religion, dress, consumerism, and legal practices. This desire to create a more

English culture in the colonies, while uneven, continued unabated until the revolutionary crisis of the 1760s. With respect to piracy trials, this embrace of British customs manifested itself in the establishment of Vice-Admiralty Courts along the traditional

English model, and in the sincere effort of many colonial officials to abide by the policies established by the Board of Trade. However, whereas other instances of Anglicization in

England's American colonies during the early eighteenth century resulted in a convergence of institutional practices across the empire, the ill-defined character of

English piracy law assured that the suppression of piracy was achieved through the adoption of a variety of jurisdictional and procedural solutions in different colonies.6

Generically, legal pluralism is the presence of multiple legal systems within a single society. This study, however, adopts Lauren Benton’s definition, widening the debate beyond state vs. non-state (customary) law to include non-traditional jurisdictional

6 For more on Anglicization during the eighteenth century see, John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts.” Colonial America: Essays in Politics and Social Development, Stanley N. Katz and John M. Murrin, eds. (New York: Alfred A. Knopf, 1983), 540-572; Jack P. Greene, “Search for Identity: An Interpretation of Selected Patterns of Social Response in Eighteenth-Century America,” Journal of Social History 3 (Spring, 1970), 205-217; John M. Murrin, “Anglicizing an American Colony (Ph.D. dissertation, Yale University, 1966); Harry S. Stout, The New England Soul: Preaching and Religious Culture in Colonial New England (New York: Oxford University Press, 1986) 127-147; Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674-1860 (New York: Oxford University Press, 1993), 13-16.

9 authorities in society (ship captains, trading companies, slave owners, or any other actor who wielded law-like authority over others). 7 The concept of legal pluralism in the

American colonies was complex as the provincial legal systems merged practices based on traditional legal customs at the imperial level, with local traditions influenced by religious beliefs, contact with indigenous populations, domination by powerful local interests, and decades of isolation from Great Britain. As a result of these interactions, the legal systems in the English colonies varied in their structures, jurisdiction, and processes. However, the variety of courts, statutes, and procedures used in the suppression of Anglo-American piracy provides a peculiar example of legal pluralism in which much of the diversity of practice derived not from the conflict between formal statutory law and indigenous custom but from the intersection or interaction of (a) the considerable ambiguities and inconsistencies embedded in early modern English piracy law and (b) the varying constitutional structures and socioeconomic and political circumstances of the different colonies. By the early eighteenth century, as colonial officials attempted to adhere to unfamiliar legal procedures mandated by imperial policies and legislation, the practical application of such statutes ran opposed to the history of the disparate provincial legal systems.

English piracy trials of the first quarter of the eighteenth century based their authority on various statutes and jurisdictional claims, and many of the individual trials

7 Lauren Benton and Richard J. Ross, “Empires and Legal Pluralism: Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World,” in Lauren Benton, Legal Pluralism and Empires: 1500-1850 (New York: New York University Press, 2013), 1-20; Jane Burbank and Frederick Cooper, “Rules of Law, Politics of Empire,” in Benton, Legal Pluralism and Empires: 1500-1850, 279-295; Lauren Benton, “Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism,” Comparative Studies in Society and History 47, no. 4 (Oct., 2005), 700-724. For more on “legal pluralism” see, Sally Engle Merry, “Legal Pluralism,” Law & Society Review 22 (1988), 869-896; Brian Tamanaha, “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,” Journal of Law & Society 20, no. 2 (1993), 192-217.

10 were characterized by significant procedural inconsistencies and irregularities. This paper argue that at least four interrelated factors help explain these variations and inconsistencies. First, differing conceptualizations of piracy encouraged different procedural approaches. More specifically, English legal authorities variously viewed piracy as (i) any violent crime, particularly against property, committed at sea; (ii) a type of , justifying both special prosecutorial vigor and unusual procedural protections for the accused; (iii) a violation of the “Law of Nations” so fundamental that its perpetuators should be considered outlaws beyond the procedural protections of ordinary criminality. Second, different English statutes that imposed trial procedures derived from largely incompatible legal systems— including civil prem Roman law, common law, and awkward attempts to combine the two under admiralty jurisdiction.8 To the extent that civil law was mandated by particular statutes, the inexperience of colonial legal officials with civil law procedures contributed significantly to the procedural inconsistencies and irregularities— especially in earlier trials and courts established ad hoc. Third, some variations in the trials were due to changes in the underlying pattern of piracy, as wayward privateers (who primarily preyed on foreign merchant vessels in distant waters) were replaced in colonial courtrooms after 1713 by marauders (who attacked English ships carrying colonial goods.) This evolution in the pattern of piracy also eroded local support for pirates in colonial port towns, making legal authorities more willing to rely on previously sympathetic juries (required under common law but bypassed in civil law proceedings) to deliver convictions. Fourth, looming over all of these other factors, the constant pressure from English imperial authorities to achieve convictions sometimes led local judges and prosecutors to bend, if not break, established rules and procedures.

8 Here and after civil prem Roman law will be referred to simply as civil law.

11 II. Foundations for the Inconsistencies and Irregularities of English Piracy

Trials

The only thing consistent about piracy in English law was its inconsistency.

Although beginning in the sixteenth century England passed several statutes intended to ease the prosecution of pirates, there remained a persistent vagueness in English law as it pertained to the crime of piracy. Since individual statutes repeatedly redefined which acts constituted piracy and frequently contained anti-pirate rhetoric highlighting its uniquely egregious nature, even the terms piracy and pirate were open to interpretation by the courts.9 As a result of this ambiguity, three distinct conceptions of piracy influenced

English court officials in the late-seventeenth and early-eighteenth centuries.

Piracy prior to the sixteenth century was considered a robbery at sea. However, over the next two hundred years, a series of statutes consistently added to the list of pertinent offenses. By the , piracy became an umbrella term for any crime committed within the jurisdiction of the Admiralty, including several offenses not considered crimes on land: mutiny, failing to defend one’s merchant vessel from pirate attack, and trading with pirates. Courts frequently ignored the language contained in their jurisdictional statute in favor of alternative definitions, demonstrating the flexibility judges had in defining what counted as piracy and who counted as a pirate.10

9 Hanna, Pirate Nests, 289; Douglas R. Burgess, Jr., The Politics of Piracy, 8. 10 For examples of judges in piracy trials defining piracy in conflict with the language of their jurisdictional statute view, The Tryals of Joseph Dawson, in Baer, British Piracy vol. 2, 120; “The Trials of Eight Persons Indited for Piracy. Of whom Two were Acquitted, and the Rest found Guilty, (Boston: John Edwards, 1718),” in Joel H. Baer, British Piracy in the Golden Age, vol. 2 (London: Pickering & Chatto, 2007), 120; “The Tryals of Major , and other Pirates (London: Benjamin Crowse, 1919),” Pre-Federal Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the . National Archives, Atlanta, ; “Tryals of Thirty-Six Persons

12 The second way that some English legal officials viewed piracy was as a form of treason. During the fifteenth century, English law viewed piracy as petty treason if committed by a crown’s subject and a felony if committed by a foreigner. For the next two centuries, the crime waffled ill-defined between its status as a form of treason and a type of felony. Technically, piracy was a felony, at least under certain circumstances. As

Nicholas Trott, Judge of the Vice-Admiralty for South Carolina, explained during the trial of Stede Bonnet in 1718: “Before the Statute of 25 E.3 (1536) Piracy was holden to be Petit Treason, but since that Statute, the Offenders received Judgement as Felons.”

Trott went on to argue that the term itself denoted a felony under civil law, while both piratically and feloniously had to be included in an under common law proceedings.11 This contradicted the views of Sir Edward Coke, Chief Justice of England and one of the most influential of all English legal authorities. He contended during a trial in 1615 that piracy under common law remained a type of treason because it severed the ties of allegiance with the monarch.12

The notion that piracy was particularly heinous and a violation of crown interest resulted in the stubbornly persistent belief that the crime constituted treason despite any clear legal designation demarcating it as such. James Smith, King’s Advocate for South

Carolina, dramatically proclaimed in 1717, that “Ships are under the Publick Care. And to this Improvement our Nation owes its Greatness, Safety, and Riches. Masters of Ships are Publick Officers, and therefore every Act of Violence and Spoliation committed on

for Piracy, Twenty-Eight of them upon Full Evidence were Found Guilty, and the rest Acquitted. At a Court of Admiralty for Tryal of Pirates, Held at Newport within His Majesties Colony of Rhode-Island and Providence-Plantations in America (Boston: Samuel Kneeland, 1723),” in Baer, British Piracy vol. 3, 175. 11 The Trials of Stede Bonnet, folio 4. 12 Rubin, 44-50.

13 them or their Ships, may justly be accounted Treason.”13 Because of this belief, piracy trials from the 1670s onward never followed standard felony procedures. In the structure, zeal, and aggressiveness of the court, piracy trials mirrored state treason trials far more than simple felonies.

The final conception of piracy among seventeenth- and early-eighteenth-century

English judges that affected trial procedures centered on the perceived egregiousness of the act itself. To many, pirates committed a crime so heinous that they hardly deserved a trial at all. Paul Dudley, Her Majesty’s Advocate for Massachusetts’s Vice-Admiralty

Court during the trial of in 1704, argued that “if Piracy be committed upon the Ocean, and the Pirates in the Attempt happen to be overcome, the Captors are not obliged to bring them to any Port, but may expose them immediately to Punishment, by

Hanging them at the Main-Yard.”14 This particular claim, while unprecedented in English law, is an example of the style of anti-pirate rhetoric typical of the day, where court officials routinely referred to the accused as hostes humanis generis, enemies of all mankind.15 Violating established procedure was a small price to pay to ensure the conviction of such dangerous outlaws.

13 Eight Persons Trial, in Baer, British Piracy vol. 2, 300. 14 “The Arraignment, Tryal, and Condemnation, of Capt. John Quelch, and Others of his Company, for Sundry , Robberies, and Murder, Committed upon the Subjects of the King of , Her Majesty’s Allie, on the Coast of Brasil, (London: Ben. Bragg, 1704),” in Baer, British Piracy, vol. 2, 269. 15 Paul Dudley, Attorney General of Massachusetts, “A Pyrate was therefore justly called by the Romans, Hostis Humani Generis: And the Civil Law saith of them, that neither Faith nor Oath is to be kept with them.” Quote from The Tryal of John Quelch, in Baer, British Piracy, vol. 2, 269. See also, “The Tryal of Captain and his Crew, Pursued before the Judge of the High Court of Admirality of ; And the Affessors appointed by the Lords of Privy Council (: Andrew Anderson, 1705,” accessed on March 18, 2016 from Early American Imports, 47-48; The Eight Persons Trial, in Joel H. Baer, British Piracy in the Golden Age, vol. 2, 297.

14 The vague and conflicting nature of piracy laws also hampered the government’s efforts to create a uniform process for convicting pirates. Prior to 1536, piracy trials were conducted using civil law procedures. However, English civil law brought with it certain limitations which made it difficult for magistrates to secure convictions, even in

Admiralty courts. Parliament’s passage of the Offenses at Sea Act (1536), the first of two primary English statutes that defined the crime of piracy and regulated trial proceedings during the seventeenth and eighteenth centuries, was a direct response to these challenges. The act was designed to ease the prosecution of pirates.16

Royal officials clearly believed the primary obstacle hampering their efforts to curtail piracy was the requirement under civil law that any conviction resulting in the death penalty had to be accompanied by a confession or two eye witnesses. Civil law precedent also barred accomplice and interested party testimony. The 1536 Piracy Act enumerated these difficulties,

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 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.17

Those who hoped that the Offenses at Sea Act would simplify and expedite the process of trying pirates were thoroughly disappointed. The law made piracy a common

16 Piracy was no longer interpreted as a robbery at sea, but rather a catch-all term for any crime committed within the jurisdiction of the Admiralty. “That all , Felonies, Robberies, Murthers, and Confederacies hereafter to be committed here or upon the Sea” appears six times in the language of the law, while it does not contain the word piracy at all, and pirate only appears in the opening sentence. 28 Henry VIII c. 15 (1536) Offenses at Sea Act, in Rubin, Law of Piracy, 359-361. 17 Ibid., 359.

15 law offense, under the jurisdiction of the High Admiralty, tried in a special oyer and terminer court at the in London, presided over by a mix of Admiralty and common law judges, with verdicts decided by a jury of peers.18 The Admiralty’s proprietary authority and jurisdiction over all crimes at sea was the only consistent element of early English piracy law.19 English piracy had always been a distant crime, and the Admiralty’s claim of universal jurisdiction reflected this reality.

In fairness, the act did address the major difficulties involved in trying pirates under civil law. Common law procedures allowed for accomplice testimony and the admittance of circumstantial evidence.20 For a time, when England’s expansionist ambitions remained confined to the British Isles, this eclectic approach seemed sufficient to address a minor maritime issue. However, it proved woefully inadequate in restraining the rampant piracy that accompanied England’s colonial expansion in the latter half of the seventeenth century. Facing sailors who departed from distant ports, attacked ships on the other side of the world, and returned to the open arms of colonial collaborators, the

1536 Act quickly proved deficient in combating the rising threat. The requirement that the special oyer and terminer court in London try all pirates made their prosecution costly and difficult.21 Colonial officials were responsible for transporting suspected pirates,

18 Oyer and terminer means to “appear and determine.” 19 Admiralty courts maintained the authority to try offenders for “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 or have or pretend to have Power, Authority or Jurisdiction.” Henry VIII c. 15, I. 3, in Ibid., 360. The practical application of universal jurisdiction was far more complex and uneven than is described here and varied across temporal and spatial boundaries. For more on this complexity see Lauren Benton, “Toward a New Legal History of Piracy: Maritime Legalities and the Myth of Universal Jurisdiction,” International Journal of Maritime History XXIII, no. 1 (June, 2011), 225-240. 20 Hanna, 31. 21 The act allowed for the establishment of commissioned courts outside London in the designated ‘Five Ports’ of the coastal towns of Sussex and . However, this did nothing to ease the burden of prosecuting pirates in the colonies. Henry VIII Act, V, VI, in Rubin, 361.

16 along with all of the witnesses, to England for trial. Beyond the logistical nightmare of prosecuting remote criminals, local juries consistently defied the spirit of the law, acquitting accused pirates of legal offenses they considered sociably acceptable because of the economic benefits pirates brought to the cash-strapped colonies.22

Technically, all the piracy trials held in the colonies during the seventeenth century were of questionable legality since, under the 1536 Henry VIII Act, only a commissioned oyer and terminer court in England could hear cases of piracy. However, that did not stop several colonies from holding their own trials.23 The crown did little to discourage such activities, consistently pushing for laws at the colonial level designed to crack down on pirates, in clear violation of the standing 1536 law. The Jamaican Act for

Restraining and Punishing Privateers and Pirates, passed by the local assembly in

February of 1683, for example, made piracy a crime punishable in a local Admiralty court under common law procedures. In March of the following year, the Lords of Trade and Plantation ordered all the colonial governors to pass anti-piracy legislation drafted on the Jamaican model. However, concerned about the legality of such actions, the Lords of

Trade asked the King’s counsel and Advocate-General for a ruling. This leading English legal authority answered that the 1536 Henry VIII Act did not extend to the colonies and could not be used as justification for bypassing the oyer and terminer court in London.24

This ruling meant that, by the end of the seventeenth century, three hundred years of legal precedent had given Admiralty Courts jurisdiction over all maritime crimes, but no

22 For the difficulties in trying pirates under the Henry VIII Act, see, 11 & 12 William III c. 7. I, in Ibid., 362; Hanna, 3-5, 30; Ritchie, 140; Burgess, 18; Peter T. Leeson, The Invisible Hook: The Hidden Economics of Pirates (: Princeton University Press, 2009), 143. 23 Hanna, Pirate Nests; Burgess, The Politics of Piracy. 24 Hanna, 135-178; Helen J. Crump, Colonial Admiralty Jurisdiction in the Seventeenth Century (London: Longmans, Green and Co., 1931), 91-111.

17 legislation existed to permit the prosecution of pirates in the colonies. Governors could always ship pirates to London, but doing so was costly, and contrary to mounting pressure from the Board of Trade to try pirates locally.

Major changes in the English legal system at the end of the seventeenth century had a significant impact on the colonies’ prosecution of pirates. Parliament passed the

Treason Trials Act (1696) in response to a series of treason cases brought against political opponents of the monarchs during the later Stuart dynasty in the 1670s and 1680s.25 This landmark legislation was a reaction to what contemporaries considered blatant judicial murder and gross crown intrusion into judicial proceedings. Judges, handpicked by the crown and dependent on royal favor for personal and professional status, fashioned a courtroom environment similar to piracy trials of the subsequent decades. With no jury of their peers, defendants unrepresented by legal counsel were left to the mercy of hostile courts.

For much of the seventeenth century, treason trials followed felony procedures in most respects, except for the presence and aggressiveness of government prosecutors and the blatant bias of the judges. These state trials garnered considerable attention from both the state and the public. The prosecution team, absent in felony trials, was present in full strength to represent the crown’s interest. They consisted of high-ranking officials, usually the Attorney General and Solicitor-General, and several lesser prosecutors. The justices, whose political future in the king’s court depended on royal favor, took an aggressive posture towards the accused, belying their supposed impartiality. The barring

25 Popish Plot (1678-1680), Stephen College trial (1681), The Rye House Plot trials (1683), The Bloody Assizes (1685), The Seven Bishops case (1688). Langbein, Lerner, & Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (New York: Aspen Publishers, 2009), 650-654.

18 of defense counsel in felony and treason trials placed the accused at a serious disadvantage, since few of them had any knowledge of English law or courtroom procedures. If defendants in felony trials fought an uphill battle trying to rebut criminal charges, those in state trials ran head first into a court constructed to ensure their conviction.26

The Treason Trials Act was an attempt to correct the obvious unfairness of the court proceedings by chipping away at the prosecution’s clear advantage. Specifically, the defense could subpoena witnesses, a power previously limited to the prosecution, and the court accepted their witness testimony under oath for the first time in English law. It provided the accused with an advance copy of the indictment and limited the evidence to the charges listed therein. It also guaranteed defendants the right to counsel for the first time during both the pre-trial stage and the trial itself. The drafters of the bill saw that treason trials presented distinctive problems that required special procedures. As legal historian John Langbein explains: “The seemingly unique features of treason prosecutions, previously emphasized— the prosecutorial imbalance, the subservience of the bench, the complexity of the offense of treason— appeared to contemporaries to demarcate the treason trial as a procedural world of its own, remote from ordinary crime.”27 I contend that these features were not unique to treason, but were shared with piracy.28

26 Ibid., 606-607, 648; John H. Langbein, The Origins of Adversary Criminal Trial (New York: Oxford University Press, 2003), 99; David H. Flaherty, “Criminal Practice in Provincial Massachusetts,” Publications of the Colonial Society of Massachusetts, vol. 62 (: Anthoenson Press, 1984), 239-241. 27 Langbein, Lerner, Smith, 663. 28 For a comprehensive analysis on the Treason Trials Act read, Langbein, Lerner, Smith, 650-663; Langbein, 3, 67-68, 88-97.

19 Many court officials lamented the danger posed by pirates, further ideologically distancing the offenders from common criminals, and declared their capture a public service. In 1718, Attorney General for South Carolina Richard Allen instructed a : “if a stop be not put to those Depradations, and our Trade no better protected, not only Carolina, but all the English Plantations in America, will be totally ruin’d in a very short time.” 29 Officials believed that convicting pirates benefitted society in a way convicting other sorts of criminals did not, demonstrating the uniquely egregious nature of the crime. This perception of the particularly heinous nature of piracy and its threat to overseas commerce, justified breaks from felony procedures in a way analogous to treason trials.30 The procedural similarities between piracy and treason are striking. It was not unusual for piracy trials to last several days, sometimes even a few weeks, due to the complexity of the crime and large number of defendants. Additionally, the same oyer and terminer court commissioned by the Admiralty to prosecute piracy cases in London also oversaw state treason trials. Despite the fact that the various piracy laws required only four to seven judges during trials, the notoriety of the cases swelled their ranks, as it typically did in state trials. A dozen justices or more commonly sat in piracy trials after

1690, with twenty-four presiding over Fly’s trial in Boston, a significant departure from a felony trial’s lone judge. 31

29 Quote from, The Eight Persons Trial, in Joel H. Baer, British Piracy in the Golden Age vol. 2, 338. See also Charles Hedges instructions to grand jury, The Tryals of Joseph Dawson, in Baer, British Piracy vol. 2, 122. 30 Massachusetts’ King’s Advocate James Smith argued that tradition included piracy among particularly “Atrocious crimes, which by the Civilians are called ‘excepted cases…” continuing “That probation by conjectures and presumptions in things hard to prove, and secretly committed, is held to be good and evident proof.” He is clearly arguing that officials viewed piracy as a special crime requiring unique procedures. The Eight Persons Trial, in Baer, British Piracy vol. 2, 312. 31 (Fourteen) commissioners for the Rackam trials, “The Tryals of Captain John Rackam, and other Pirates… Who were all Condemn’d for Piracy, at the Town of St. Jago de la Vega, in the Island of Jamaica, on Wednesday and Thrusday the Sixteenth and Seventeenth Days of November 1720. As also, the Tryals

20 Not only did defendants face a larger court, but the existence of the court was constructed for the sole purpose of convicting and executing pirates, which fostered an aggressive and biased stance by the judges.32 Justices frequently warned the jury of the threat posed by piracy and reminded them of their duty to secure the interests of empire.

This is not to claim that judges were truly impartial in any trial of the era, even common felonies, but simply that the level of judicial advocacy in piracy and treason trials reached unparalleled levels. Additionally, unlike felony trials, where the absence of professional prosecutors and defense counsel placed victim-plaintiffs and defendants on similar footing with respect to representation and general inexperience in matters of law, courts employed large, competent, and active prosecution teams to try cases of piracy. 33

Prosecuting pirates was an all hands on deck affair.

of and , alias Bonn (Jamaica, 1721),” in Baer, British Piracy vol. 3, 9; (Fourteen) for the trial of Four Persons, “The Tryal of Four Persons for Piracy at Charles Town.” Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of District Courts of the United States. National Archives, Atlanta, Georgia; (Nineteen) for Five Persons trial, “The Trials of Five Persons for Piracy, Felony and Robbery (Boston: S. Gerrish, 1726),” in Baer, British Piracy vol. 3, 199; (Twenty-four) for the Sixteen Persons trial, “The Tryals of Sixteen Persons for Piracy. Four of which were Found Guilty, and the rest Acquitted. (Boston: Joseph Edwards, 1726),” in Baer, British Piracy vol. 3, 237. 32 Despite the presence of a large prosecution, Chief Justice Hedges took the time to passionately rouse the national spirit of the grand jury to ensure indictment for ’s crew in 1696: “let every man therefore who pretends to any thing of an English Spirit, readily, cheerfully follow so good, so great, so excellent an Example, by assisting and contributing to the utmost of his power and capacity at all times towards the carrying on his noble and generous Designs for the common good, and particularly at this time, by doing all he can, to the end that by the Administration of equal Justice, the Discipline of the Seas, on which the good and safety of this Nation entirely depends, may be supported and maintained.” The Tryal of Joseph Dawson, in Baer, British Piracy vol. 2, 122. 33 Perhaps the most important feature of felony trials was the role of the judge as an advocate of the truth—surely a dubious proposition for any defendant. Since tradition held that felony criminal proceedings during the seventeenth century operated as a lawyer-free process, without prosecution or defense counsel, it was left to the judges to cross-examine witnesses, ask questions of the accused, and challenge flaws in the plaintiff’s case. In theory, justices mediated disputes between the two parties, quickly extracting the facts of the case. Similar to treason procedure, courts tasked with prosecuting pirates employed high ranking officials, such as attorney-generals and solicitor-generals, to head the prosecution and look out for the king’s interest. Langbein, Origins, 2-28. Langbein, Lerner, 595-607.

21 For the colonies to actively pursue the crown’s aggressive anti-piracy policies, the question of jurisdiction had to be resolved. To that end, the British Parliament passed An

Act for the more effectual Suppression of Piracy, also known as the Piracy Act of 1700.34

For the first time within an English statute the act included the word “piracy,” reflecting the idea that it was no longer a general term for a series of crimes committed at Sea, but a crime in and of itself. The statute expanded the definition of pirates to include mutineers who commandeered their ships and sailors who interfered with the defense of their vessel. It also made accessory to piracy a crime analogous to the actual act, punishable by death and the loss of property.35

The new legislation, originally binding for seven years, created a series of Vice-

Admiralty Courts through either the King’s commission, a commission under the Great

Seal of England, or by the Seal of the Admiralty of England. 36 The law of 1700 was

34 11 & 12 William III c. 7 (1700). 35 11 & 12 William III c. 7 (1700), IX-XI. Although the Piracy Act of 1700 designated accessory to piracy a crime, it did not give the Vice-Admiralty Courts’ authority to try the accused. Under the statue, colonial officials had to send accessories to England for trial. Ibid., X. 36 Although historian Carl Ubbelohde only briefly discusses piracy trials in his analysis of Vice-Admiralty Courts and their role in the , he does contend that pirates were not tried in provincial Vice-Admiralty Courts. He argues that pirates in the colonies were tried in a special court of Admiralty in front of a select panel of colonial officials. However, Ubbelohde fails to distinguish between courts in session prior to the Piracy Act of 1700 and those that followed. During the seventeenth century many of the colonies established provincial Vice-Admiralty Courts for the almost exclusive purpose of condemning prizes of voyages. The 1700 Piracy Act only mandated requirements for cases of piracy, and piracy trials made up a small percentage of the overall caseload for colonial Admiralty courts. So to say that the provincial Vice-Admiralty Courts were different in composition, procedure, and authority from those that tried pirates is probably accurate; however, I see no evidence to suggest that there were two courts operating concurrently within a colony. The difference in composition of courtroom officials in piracy trials compared to more common hearings for the condemning of privateer prizes was likely further exacerbated by the high profile nature of piracy cases, which drew more interest from influential members of government. Almost all of the surviving trial reports reference the courts for piracy trials as a Court of the Admiralty, or a special session of the Admiralty. The only court that called referred to itself as a Vice-Admiralty Court in the trial reports was the trial of Stede Bonnet in South Carolina in 1718. This failure of colonial officials to use the phrase Vice-Admiralty Courts was likely either a terminology issue, or an attempt by the colonies to appear on equal footing with the High Court of Admiralty in England. However, historians should view these courts historians as Vice-Admiralty Courts because they were subordinate to the High Court of Admiralty of England, which issued their commissions, and retained the

22 established to be the sole means of trying, convicting, and punishing pirates in the colonies, while the 1536 Piracy Act remained the legal statute for courts in England. The act required that piracy trials occur “according to the civil law, and the methods of the

Admiralty.”37 Colonial governors could establish courts on an ad hoc basis on land or at sea, making the trial of pirates a mobile affair. The bench had to consist of no less than seven commissioners, at least one being a high-ranking colonial official or of a Royal Navy ship. If seven of these men were unavailable, officials could select from navy officers, and then merchants and planters as a last resort. This level of detail demonstrates the importance imperial officials placed on staffing the bench with loyalists receptive to the Crown’s policies.38

The requirement that all piracy trials in the new Vice-Admiralty Courts follow civil law procedure meant a drastic divergence from traditional colonial courtrooms. In

Massachusetts, the absence of a jury trial in a capital case was the most noticeable break with established precedent, and putting a man to death for a property crime when local

Puritan tradition demanded only a three-fold restitution seemed to many contemporaries exceptionally harsh.39

Though it may be thought by some a pretty severe thing, to put an English-man to Death without a Jury, yet it must be remembred, that the Wisdom and Justice of our Nation, for very sufficient and excellent Reasons, have so ordered it in the Case of Piracy; a Crime, which as before I observ’d, scarce deserves any Law at all.40

authority to overturn decisions made by the lessor courts. Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution (Chapel Hill: The University of North Carolina Press, 1960) 17 note 18. 37 11 & 12 William III c. 7 (1700), IV. 38 Ibid., I-III. 39 Letter from Governor Lord Bellomont to the Council of Trade describing the difference between English and Massachusetts property felony law. “Letter from Bellomont to Council of Trade,” Calendar of State Papers, American and , 1699, 746, in Dow, 366. 40 Massachusetts Attorney General Paul Dudley addressing the court during the John Quelch trial, 1704. The Tryal of Captain John Quelch, Baer, British Piracy vol. 2, 270.

23 However, officials remained resolute that the heinous nature of piracy demanded unique procedures to secure the prosperity of the empire. In principle, some elements of civil law benefited defendants in piracy trials. Particularly, since civil law prohibited accomplice or interested party testimony and required two eye-witnesses to convict in capital cases, it theoretically placed a significant burden on the prosecution, thereby alleviating the risk of wrongful convictions. However, in an effort to secure the empire’s trading routes and demonstrate their loyalty to king and country, colonial judges frequently ignored these requirements.41

Charles Hedges, the Chief Justice of England’s High Court of Admiralty, was the primary architect of the legislation which brought an entire generation of English pirates before the bar. He incorporated both his personal views of the proper way to try pirates, along with elements of the Treason Trials Act, into the 1700 Piracy Act. Anyone in the courtroom for a piracy trial that Hedges presided over in 1696 would have recognized similarities between those procedures and the legislation he drafted over the following two years. He favored judging pirates harshly at trial and then asking for the sovereign’s mercy. In his opening address to the grand jury, Hedges expanded on this belief: “If a jury happens in these cases to be too severe, there is room for Mercy, and I am confident, that upon a just representation, the Innocent never failed of obtaining it; but for a fault, neglect, or errour on the other hand, there is no relief for injured Forreigners…”42

The flaw with this theory is that counting on a merciful reprieve was rarely effective in politically motivated prosecutions, and piracy trials during the eighteenth

41 Baer, British Piracy, ix-xi. 42 The Tryals of Joseph Dawson, Baer, British Piracy vol. 2, 122.

24 century were almost always political. Protecting defendants from malicious prosecution in high-profile trials was the whole purpose of the Treason Trials Act. It is reasonable to assume that Hedges saw the connection between the state treason trials under the Stuarts and the contemporary piracy trials and took steps to reduce the prosecution’s clear advantage. The 1700 Piracy Act required the prosecution to provide the accused with the indictment prior to trial and specified what information they had to include with the charges. It also gave defendants the power to compel testimony and placed those defense witnesses under oath for the first time in English law outside of treason proceedings.43

Despite the concessions Hedges made to combat the obvious disadvantages defendants faced in piracy trials, it is also clear that Hedges was not willing to provide suspected pirates with an avenue to escape justice. To the Chief Justice, these minor concessions in no way hampered the court’s ability to ascertain the truth. To that end,

Hedges withheld from his piracy legislation two crucial components of the Treason Trial

Act that conflicted with his approach to trying pirates. One of the most important and radical changes in treason trial procedures derived from the statute was that it changed the court’s interaction with the accused. Instead of a combative environment, the courts began to see defendants as possible victims.44 This was contradictory to Hedges’ philosophy that courts should have a heavy hand in administering justice, and it was certainly antithetical to the crown’s aggressive anti-piracy campaign. Instead of softening the courtroom’s attitude towards pirates, court officials escalated the anti-pirate rhetoric during the early eighteenth century, vilifying the accused and reminding those in attendance of the wickedness of piracy.

43 11 & 12 William III c. 7 (1700), VI. 44 Langbein, Origins, 67-68.

25 Although the act allowed defendants to cross-examine prosecution witnesses, it did not guarantee the right to counsel for the accused. Hedges probably excluded counsel for two reasons. English officials viewed Atlantic and South Sea pirates at the turn of the century as an increasing threat to the empire’s expanding overseas trade. As long as piracy endangered the mercantilist interest of the empire, officials were not going to make the already difficult task of prosecuting pirates harder. Furthermore, since the state courts aimed their fury at political rivals of the monarch, there was a certain level of self- preservation for MPs embedded in the Treason Trials Act. It therefore acted as a safeguard for those who might fall on the wrong side of a succession conflict in the future. Since very few pirates were of genteel status or held favor with anyone of real influence in England there was far less concern. After all, no pirates roamed the corridors of Whitehall.

The English government consistently supported the Piracy Act of 1700, renewing it multiple times to prevent its expiration until Parliament made it perpetual in 1719.45

They also continued to widen the definition of piracy to include additional acts and to reduce a pirate’s ability to coerce assistance from third parties. Parliament passed The

Piracy Act of 1721, which was intended to supplement, not supplant, the 1700 act. The new statute made trading with pirates an act of piracy. It also established punishments for naval officers who engaged in trade during patrol missions and called for wage forfeiture and six months in jail if sailors refused to defend their merchant ship against pirates. The

Board of Trade was so satisfied with pirate convictions in the colonies, despite the erratic

45 Renewed in 1707 (5 Anne, c. 34, art. 3), 1714 (10 Anne, c. 14, sect. 2), made perpetual in 1719 (6 George 1, c. 19). Eighteenth Century Collections Online, https://quod.lib.umich.edu/e/ecco/, accessed 14 September, 2016.

26 means of doing so, that it granted the colonies permission to try accessories in Vice-

Admiralty Courts in 1721.46

Passing legislation in London was one thing, implementing it in over a dozen colonies thousands of miles away was quite a different matter. As the campaign against pirates shifted from the British Isles to the American colonies, the new law introduced a new complication to the efforts at creating a uniform process in piracy trials. The 1700

Piracy Act outlined how courts were to try pirates in the newly established Vice-

Admiralty Courts, but few if any individuals knowledgeable in the procedures and precedents of English law were present in the colonies. William Penn, proprietor of

Pennsylvania, argued vehemently against the perceived usurpation of charter rights and complained about the difficulty in following the statute, since no one in the colonies understood civil law procedure. Robert Quarry, a recent judicial appointee to

Pennsylvania’s new Vice-Admiralty Court, confirmed Penn’s analysis when he wrote, “If none but a person learned in the law must be Judge of the Vice-Admiralty in

Pennsylvania, then the crown must be without justice there, or send a person so qualified to England.”47

The Board of Trade’s solution to this serious impediment was to send George

Larkin, a lawyer of the High Court of Admiralty, to the colonies in the spring of 1700 to instruct colonial officials in civil law and the proper procedures for piracy trials. This whirlwind tour sent Larkin to nine colonies, where he spent roughly two weeks in each

46 An act for the more effectual suppression of Piracy, 1721 (8 Geo. I. c. 24). 47 Penn to Charlwood Lawton, Dec. 10, 1700, Penn Papers, III, 624-629; Col. Quary’s Answer to Mr. Penn’s Complaints against Him, June 23, 1702, CO 5/1261, no. 118, both in Hanna, Pirate Nests, 290-314, quotes on 314.

27 one giving a crash course to unprepared and, at times, uncooperative recipients. He skipped the proprietary colonies completely. In Massachusetts, no high-ranking official was present for Larkin’s training, and those who did show up proved highly resistant to accepting civil law procedures in their courts. ’s Governor Benjamin Bennett went so far as to jail Larkin multiple times for his relentless inquisitions into the island’s relationship with pirates.48 Despite the Board of Trade’s efforts to establish a uniform procedure for trying pirates in the colonies, local officials’ complete lack of experience with and knowledge of civil law, and piracy trials specifically, hindered their efforts significantly.

The third factor contributing heavily to the inconsistencies of English piracy trials during the eighteenth century was the evolution of piracy at the conclusion of the War of

Spanish Succession (1701-1713). Although navy and privateer vessels kept most of the potential pirates in the previous decade busy by employing them against the French, the end of the war flooded the seas with sailors who knew no other way of making a living than preying on merchant ships.49 Great Britain’s military and commercial success over the previous fifty years meant the majority of those merchant vessels would now be her own. There was also a geographical change that occurred, as the West Indies, the waters off the North American Coast, and routes became infested with

48 Ritchie, 143. For an in-depth analysis of George Larkin’s colonial trip view, Hanna, 292-329. 49 The demobilization of the Royal Navy, coupled with the expiration of privateer commissions and the expected post-war recession, reduced trade and employment opportunities on merchant ships. Rediker, Between the Devil, 281.

28 maritime criminals who had operated almost exclusively since the 1680s in the South

Sea. 50

These changes had profound implications for piracy trials in the newly established

Vice-Admiralty Courts. Since most post-1713 piracy cases involved British subjects attacking British ships in the vicinity of colonial ports, several of the major obstacles prior courts faced in convicting pirates resolved themselves. First, it reduced the ambiguity that plagued seventeenth-century piracy trials by eliminating the difficulty in distinguishing between officially-sanctioned pirates and sea marauders. Sailors now knew for certain that they were pirates, that what they were doing was illegal, and what would happen if they were captured. Second, since the Piracy Act of 1700 made it more likely that the crime itself occurred in close proximity to a court with proper jurisdiction to try pirates, securing eye-witness testimony against the accused became far less burdensome for authorities who previously had to locate them in a worldwide search, and then ship them to London. In some cases, these benefits for the prosecution were noticeable and significant. However, the change in the nature of piracy fell short of creating a uniform system of procedures. The increasing threat of piracy to local interests, combined with the continued demand to demonstrate an anti-piracy stance to London, strengthened the resolve of Vice-Admiralty Courts to secure convictions. No longer were colonial officials prosecuting pirates simply out of fear of imperial retribution. By then, they were facing a

50 Notorious pirates such as Edward “” Thatch, , , , Lowther, John Rackam, Stede Bonnet, and many others ‘hunted’ of the coast of during the spring and summer months, then sailed south to the West Indies when the weather turned unfavorable for trade. The previous generation of pirates, during the Kidd and Every era, plagued merchant ships in the South Sea, returning to the colonies to fence their ill-gotten gains.

29 real threat to local commerce, motivating them to remove pirates from local waters by any means necessary— even if that meant violating established procedures.

The final element leading to the inconsistencies and irregularities of piracy trials was the constant pressure placed on colonial officials by the royal government to secure convictions against pirates. Some colonies, the proprietary colonies in particular, were notorious for collaborating with pirates during this period. As historian Mark Hanna writes, “nearly every private colony feigned obedience by passing laws and writing apologetic letters to London.”51 No colony resisted the new policies more than Rhode

Island. The small colony’s reputation as a safe haven for pirates, and Governor Walter

Clarke’s refusal to aggressively pursue them in his community, set off a series of events leading to a real threat that the Crown would revoke the colony’s charter.52 In 1698, in an effort to demonstrate their adherence to the Lord of Trade’s wishes, the Rhode Island

Admiralty court prosecuted two suspected pirates. However, in traditionally defiant fashion, it conducted the trial under common law procedures in clear violation of a 1696

Navigation Act requiring the use of civil law.53 Not surprisingly, the local residents of

Newport acquitted both men. Only the commencement of hostilities with reduced the tension from a critical level.

51 Hanna, 232-259, quote on 254. 52 Burgess, The Politics of Piracy; Hanna, 178-202, 254-259. 53 Act for Preventing Frauds, and Regulating Abuses in the Colonies (1696). William III, 1695-6: An Act for preventing Frauds and regulating Abuses in the Plantation Trade [Chapter XXII. Rot. Parl. 7 & 8 Gul. III. pt.5.nu.8.]', in Statutes of the Realm: Volume 7, 1695-1701, ed. John Raithby (s.l, 1820), pp. 103- 107. British History Online http://www.british-history.ac.uk/statutes-realm/vol7/pp103-107 [accessed 18 October 2016]. Architects of the act intended it to establish a uniform system of Admiralty courts in the colonies along the model of English High Admiralty court. The use of civil law procedure meant proceedings occurred without the inclusion of sympathetic local juries. However, since the act itself failed to give proper authority for the establishment of these courts, English officials declared those established under the statute invalid, and many were dissolved before having any impact. Burgess, 110; Hanna, 232- 233.

30 To ensure the compliance of the more intractable governors, An Act to Punish

Governors of Plantations in This Kingdom for Crimes by Them Committed in the

Plantations, passed concurrently with the 1700 Piracy Act, formalized the risk of charter revocation: “And be it further declared and enacted, That if any of the Governors in the said Plantations, or any Person or Persons in Authority there, shall refuse to yield

Obedience to this Act, such Refusal is hereby declared to be a Forfeiture of all and every the Charters granted for the Government or Propriety of such Plantation.”54 To imperial officials, the need for such severe threats lay not in a colony’s refusal to follow proper statutes and procedures, but in its refusal to aggressively convict pirates. In 1700, after the passage of the new piracy act but before its implementation, Governor Francis

Nicholas of determined that there was no clear statute guiding the trial of pirates in the colony, so he tried three men accused of piracy in the General Court according to common law procedures established by the 1536 Henry VIII Act. This was in clear violation of English law and an obvious departure from the crown’s wishes to try pirates using civil law methods in Admiralty courts. Instead of castigating the colony for disobeying the Board of Trade’s instructions, the Admiralty commended Nicholas on the three convictions, while the London press showered the colonial governor with praise. 55

As the Virginia trial in 1700 demonstrated, the Crown’s priority was convictions in piracy trials, not adherence to particular statutes or to civil law— despite the fact that the government clearly favored its use over common law. In an attempt to further ease the prosecution of pirates, Parliament included a section on piracy in the Transportation Act

54 11 & 12 William III, c. 12. 55 The Trialls of John Hougling Cornelius Franc and Francois Delaunee for Piracies and Robberies by Them Committed in a Ship Called the Pease in Company with the Assistance, Council in Assembly of the House of Burgesses from April 1696 to May 1700, CO 5/1411, fol. 722, from Hanna, 285.

31 of 1718 which attempted to give Vice-Admiralty Courts in the colonies the authority to choose either the Offenses at Sea Act of 1536, or the Piracy Act of 1700, on an ad-hoc basis.56 This was in direct conflict with the 1700 Piracy Act (which was exclusive in its authority and required the use of civil law) and the Offenses at Sea Act (which England authorities had already ruled invalid outside the five designated port cities in England).

While there is no surviving evidence proving that any Vice-Admiralty Court took advantage of the clause in the Transportation Act to try pirates using common law, the concept that London allowed the Vice-Admiralty Courts to choose between two fundamentally different statutes demonstrates how little imperial officials concerned themselves with legal consistency in the process of prosecuting pirates.

The growing importance of colonial trade to the British empire demanded an aggressiveness buttressed by harsher penalties for collaborators and more enticing bounties for wanted pirates.57 The particularly heinous nature of piracy and its threat to

Britain’s commercial interests fueled a consistent, costly, and aggressive campaign to ensure its destruction. This relentless imperial pressure to secure convictions in colonial courts, combined with such other factors as competing conceptions of the crime, conflicting piracy statutes, and the changing characteristics of piracy itself ensured the continuation of inconsistent and highly variable trial proceedings during the first three decades of the eighteenth century.

III. Privateers or Pirates? Piracy Trials, 1701-1705

56 the Transportation Act of 1718. 4. Geo. I, c. 11, vi-ix. 57 George I’s A Proclamation for Suppressing of Pirates, issued September 5, 1717, created a multi-tiered reward system which determined the reward amount based on the rank and notoriety of the captured pirate. The proclamation promised rewards ranging from £100 for a pirate captain to £20 for a common crewman. It also offered £200 to any pirate who mutinied against his captain and brought him in for trial. Boston News-Letter, December 2-9, 1717.

32 All of the piracy trials of the early eighteenth century shared characteristics with

English state treason trials that diverged from standard felony procedures. This was partly due to the incorporation of elements of the Treason Trials Act into the Piracy Act of

1700; however, not entirely. In piracy cases, the interest of the crown, the aggressiveness of the court, the vilification of the accused, and in several instances, the granting of defense counsel all mirrored treason trials while diverging from the statutes regulating piracy. This was because there was always a political undertone to piracy and treason trials that motivated both proceedings. To the individuals responsible for determining the accused’s fate, the handful of piracy trials occurring at the turn of the eighteenth century were rarely motivated by the sole desire to remove the piratical threat from the seas.

Although the crown was involved in an aggressive campaign against piracy, these trials were also influenced by ulterior motives. The trials of (London, 1701) and

John Quelch (Boston, 1704) best display how courts manipulated the vagueness of piracy law and anti-pirate sentiment to further political agendas. Their efforts were made far easier thanks to the structure of early modern courts that placed such a heavy burden on the defense.58

a. The Arraignment, Tryal, and Condemnation of Captain William Kidd

(London, 1701)

William Kidd, a Scottish born sailor who emigrated to the New York colony in the 1680s, made a name for himself as a competent privateer during the initial years of

58 Included in these were the judge as an advocate of the truth, no testimony under oath for defense witnesses or compulsory testimony, no defense counsel, limited pre-trial preparation, and an emphasis that defendants speak away the charges laid against them. Baer, British Piracy, xiv-xviii; Langbein, Origins, 14, 49-62; J.M. Beattie, Crime and the Courts in England, 1680-1800 (Princeton: Princeton University Press, 1986), 341-352.

33 King William’s War (1689-1697). Therefore, when he proposed a new privateer voyage in 1696 he had little difficulty obtaining the requisite support. Kidd and his associate

Richard Coote, First Earl of Bellomont and newly appointed Governor for New York,

New Hampshire, and Massachusetts, funded the voyage with the financial assistance of several prominent Whig officials in government, and it was rumored that King William

III promised a large contribution. Kidd and Lord Bellomont promoted the venture as a sound investment and as a means of weakening their French enemy. To legitimize the endeavor, Kidd secured a commission issued in 1696 under The Great Seal of England to take French prizes and aggressively attack pirates. Once in the South Sea, however, Kidd and his crew aboard the Adventure preyed on multiple vessels belonging to the

Great Moghul, then in a trade partnership with the British East Trading Company.59

That the English legal system sacrificed William Kidd and his crew in order to limit political damage to the leading Whig party has already been well documented by several historians, including Robert C. Ritchie in Captain Kidd and the War Against

Pirates.60 That is not to say that Kidd was innocent of the charges, or that he never engaged in acts of piracy while on his voyage to the South Sea. The real peculiarity of the

Kidd trial is that it occurred at all when the majority of English privateers in the were committing the same acts with no consequence. As one historian contends,

“labeling privateers acting beyond their commission ‘pirates’ was inconsistent with history and practical convenience outside of the overstated rhetoric of the Kidd case itself. Illustrative examples of non-piratical takings in excess of or without commissions

59 Ritchie, 56-126. 60 Ritchie, see also Lane, 180; Rubin, 95-100.

34 abound.”61 Clearly Kidd was targeted for political reasons, and the unusual circumstances of piracy permitted his aggressive prosecution.

English officials ignored habeas corpus while Kidd rotted in a cell for nearly two years after his surrender in 1699, first in Boston and then in London, while members of the opposition Tory party extracted every last drop of the scandal to use against his Whig backers. Finally, in May 1701, Kidd and nine of his crew went before the oyer and terminer court in London, where the judges tried them for piracy under the Offenses at

Sea Act using common law procedures in front of a jury. Had Kidd been captured two years later, or if he had spent the entirety of his pre-trial confinement in Boston, officials likely would have tried the American colonist locally under the newly established Piracy

Act of 1700. While it is debatable whether Kidd would have found a colonial courtroom more sympathetic to his plight, the circumstances surrounding the trial would have almost certainly been less politically charged than the spectacle surrounding the London trials. The entirety of Kidd’s defense rested on two French passes which he confiscated from the prize Moghul ship the after its seizure. In an effort to prove the rumors of his piratical adventures false, he sent this crucial evidence ashore to Lord

Bellomont while in hiding off the coast of New York.62 Although Bellomont insisted that he forwarded the passes to London at Kidd’s request, and despite some evidence that suggests members of Parliament examined them prior to the chamber’s interrogation of the suspected pirate, the passes failed to materialize during the trial.63

61 Quote from Rubin, 99. See also Hanna, 200-202. 62 Ibid., 160-182. 63 The story of the missing French passes remained in the lore of conspiracy theory until a researcher discovered them in the archives of the Board of Trade in the early twentieth century, proving Kidd’s story legitimate. Ibid., 208-209.

35 In reality, the missing, perhaps deliberately misplaced evidence, played no role in

Kidd’s eventual fate. Concerned that sympathetic jurors would skirt their duty as

Englishmen and acquit the notorious pirate, the prosecution tried and convicted Kidd first for murder, a charge stemming from an incident involving a mutinous crew member. In one of the most aggressive rulings of all the piracy trials of the era, the court executed two of Kidd’s crew members, Darby Mullins and Nicholas Churchill, despite the fact that they surrendered themselves to English officials under a general amnesty for pirates.

Since the men failed to turn themselves into one of the four specified commissioners, the court determined the defendants could not benefit from it.64

Against felony precedent, the justices permitted defense counsel during the trial, but barred them during the pleading phase, despite several desperate requests by Kidd.

The pirate remained adamant that he would not plead before speaking to counsel, while multiple courtroom officials insisted he must do so before the court could assign him one.

There was no precedent, in either felony or treason proceedings, for denying Kidd counsel during this phase of the trial.65 After several unsuccessful attempts to delay entering a plea, the bench coerced Kidd into responding by threatening him with a procedural tactic previously limited to treason trials. In high treason cases, if the accused refused to enter a plea, the court took his silence as a confession. In contrast to this

64 “The Arraignment, Tryal, and Condemnation of Captain William Kidd, for Murther and Piracy, upon Six Several … As also, the Tryals of Nicholas Churchill (et al.)… To which are added Captain Kidd’s Two Commissions: One under the Great Seal of England, and the Other under the Great Seal of the Court of Admiralty (London: J. Nutt, 1701),” in Baer, British Piracy vol. 2, 152, 163-164. Pirates could only accept a general if the proclamation specifically included the crime of piracy. This was the only felony that required such inclusion. Johnson, 363; Baer, British Piracy vol. 2, viii. 65 The Tryal of Captain Kidd, in Baer, British Piracy vol. 2, 151-152. Technically, English law only proscribed counsel from the trial proceedings, not the arraignment or pleading phases, emphasizing the difference between matters of fact vs. matters of law. As legal historian John Langbein writes, “Pleading was about law, trial was overwhelmingly about fact.” Langbein, Lerner, 604.

36 straightforward approach, felony trials responded with brutal blunt force to coerce a plea from intractable defendants. If those before the bar continued in their obstinate behavior, the bailiff returned them to their cell, where they were ‘pressed.’ Pressing entailed jailers placing heavy weights on the accused until they agreed to enter a plea or had their chest cavity caved in. However, during the Kidd hearing, justices followed treason trial precedent to force pleas from defendants, while claiming it was standard felony procedure: “If you were indicted for Felony, and you will not plead, the Law takes it in nature of a Confession, and Judgment must pass, as if you were proved guilty.”66

Although holding no legislative authority in England, the Piracy Act of 1700, drafted three years before the Kidd trial, contains nearly identical language and may have been the origin for this break in pre-trial procedure.67

Robert Ritchie correctly points out that the Kidd trial was a turning point in

England’s relationship with privateers, as previously tolerated acts of privateering came under increasing scrutiny by merchants and government officials.68 However, historians should not view the Kidd affair as a deliberate crackdown on piracy, but as the manipulation of anti-piracy sentiment for the purpose of political gain.

b. The Arraignment, Tryal, and Condemnation of Captain John Quelch

(Boston, 1704)

Despite the historical obscurity of the voyage of the Charles, it is undeniably one of the most successful commissioned expeditions of the era, based on the value of the cargo taken. In July 1703, Governor Dudley issued a privateering commission to the

66 Mr. Recorder to defendant Nich Churchill. The Tryal of Captain Kidd, in Baer, British Piracy vol. 2, 151. 67 11 & 12 William III c. 15. IV, VI. For more on ‘standing mute’ before the bar, view Beattie, 337-338. 68 Ritchie, vi.

37 Charles to attack French and Spanish ships from Nova Scotia south through the Hudson

River. Instead, Captain John Quelch and his crew pillaged nine Portuguese vessels, an ally with England in her ongoing war with France, off the Brazilian coast from November

1703 to February 1704, robbing them of a wide assortment of valuable goods.69 The total value of property seized by the Charles amounted to £10,000. This was a staggering amount for such a short period of activity. Returning to Boston, Quelch expected to find welcoming merchants and bribable officials willing to ask few questions about the origin of their prizes. Twenty-seven of the seventy crew members had the good sense to disembark before they reached their home port. The newly-established Boston News-

Letter reported their return with little fanfare or suspicion, stating simply, “Arrived at

Marblehead, Capt. Quelch in the that Capt. Plowman went out in, are said to come from New- & have made a good Voyage.”70 A week later, officials had arrested Captain Quelch and twenty-four of his crew on suspicion of piracy.

Nineteenth-century historian Abner C. Goodell Jr. called the trial of John Quelch and his crew “one of the clearest cases of judicial murder in American annals.”71

Goodell’s opinion is understandable because of the substantial number of procedural irregularities that defined the prosecution of the accused pirates. It is also an exaggeration. To argue that Quelch’s execution represented an exceptional example of judicial murder implies that either the accused were innocent of the charges against them, or that the manner in which the Vice-Admiralty Court tried them was in some way unusually egregious. Neither of these implications are accurate. Disagreeing with

69 The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 266-268. 70 Boston News-Letter, May 15-22, 1704. 71 Abner C. Goodell, Jr., “Captain John Quelch: The Pirate,” Publications of the Colonial Society of Massachusetts Bay 3 (1895) 71-77, in Burgess, The Politics of Piracy.

38 Goodell’s accusation of judicial murder does not mean Quelch and company were properly convicted, but simply acknowledges that they were, in fact, guilty of the crime of piracy. Nor does it imply that the courtroom proceedings were free from political motivations. However, the political circumstances shaping the decisions to try the crew of the Charles were significantly different from those surrounding the Kidd proceedings.

The Quelch trial was not about embarrassing the leading political powers in Whitehall.

Massachusetts Governor Joseph Dudley viewed the proceedings as an opportunity to prove the colony’s anti-piracy position and its loyalty to the crown.

The Vice-Admiralty Court of Massachusetts, the first court convened under the

Piracy Act of 1700, arraigned John Quelch on June 19, 1704 for piracy, robbery and murder. The trial was a muddled affair from start to finish. Joseph Dudley presided as president of the court, assisted by eighteen fellow commissioners, twelve more than required by the new statute. Joseph’s son Paul Dudley, Attorney General for the colony and Her Majesty’s Advocate, headed the prosecution. Neither of the Dudleys had been present in the colony for George Larkin’s instructional sessions and their inexperience and lack of knowledge of civil law is apparent throughout the trial.72

The proceedings themselves were erratic, as the prosecution and bench waffled between common and civil law procedures depending on which benefited their case.

James Meinzies, the court appointed defense counsel, aggressively challenged the court on its repeated breaks with proper procedure. Two issues in particular highlight the weakness of the prosecution’s argument. The murder charge stemmed from the killing of a Portuguese captain whose ship had been seized by the Charles. Under English civil law,

72 The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 265; Hanna, 304.

39 only the person who delivered the blow could be charged with murder. However, despite the acknowledgment that Quelch played no direct role in the victim’s death, prosecutor

Thomas Newton argued “That if the Common Law have Jurisdiction of the cause, all that are present, and assisting at such a Murder are principals. Now the Statute of 28. Henry

VIII. makes all Piracies, Robberies, and Murders upon the high Sea, Tryable according to the Rules of the Common Law, as if they had been committed upon the land.”73 Meinzies promptly reminded the court that it derived its authority from the Piracy Act of 1700, which required the use of civil, not common law.

He then challenged the prosecution’s use of accomplice testimony to convict

Quelch. Soon after the commissioners swore their oaths and the court read their royal commission from William III, Matthew Pimer, John Clifford, and James Parrot, three of the Charles’ crew, pled guilty. The court immediately declared them Crown witnesses.74

Meinzies accurately informed the court that, under civil law, no accomplice could be a witness, since they were considered equally complicit with the accused. He further pointed out that if the prosecution intended to try pirates under the Henry VIII Act, that they should do so in the presence of a jury in common-law fashion.75 The Attorney

General’s response demonstrates the prosecution’s indifferent attitude toward following statute law:

We understand the new statute to be of the summary way of proceeding by the Commissioners, and depriving the Prisoner of a Jury; for ‘tis most certain that the late Statute against Piracy, doth strengthen and establish the Statute of Henry VIII. And it would be very odd to suppose that what the first Act of Parliament in these cases had rejected and condem’d, the method of the civil Law in the trial of Pirates, &c. The second Act of Parliament should be reconcil’d to that

73 The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 266. 74 Ibid., 268. 75 Ibid., 277-278. The concern with accomplice testimony was that the witness would say anything to save their own life. Langbein, Origins, 158-165; Langbein, Lerner, & Smith, 682-686.

40 Method, to restore and set it up in the Plantations, especially when the Title of the New Act, is an Act, For the more effectual Suppression of Piracy, &c.76

On a certain level, Paul Dudley was probably correct. It is highly unlikely Charles

Hedges and the Board of Trade intended to make it more difficult to try pirates by reinstating the ban on accomplice testimony. It is logical, given the government’s emphasis on convicting pirates, that they intended the new statute as a means to bypass local juries and place the fate of the accused in the hands of loyalist commissioners.

However, from a procedural standpoint, their intent was completely irrelevant—the statute was clear. Without the crown witnesses, the prosecution had little substantial evidence on which to convict Quelch and his crew.

Although it would probably not have changed the outcome of the trial, since

Dudley was not going to let a jurisdictional technicality obstruct his determination to convict Quelch and company, Meinzies’ otherwise admirable defense failed to challenge the validity of the court’s royal commission. In 1703, Bermuda’s incorrigible Governor

Benjamin Bennett ruled that his newly created Vice-Admiralty Court had no authority to try pirates because their commissions were signed by the then deceased William III. He postponed the trial of two men and petitioned England’s Attorney General for a ruling.

England’s Attorney General concurred with Bennett’s interpretation that only a living monarch could issue a royal commission to try pirates. The Board of Trade issued all of the colonies new commissions under Queen Anne on October 20, 1704, four months after

76 Paul Dudley. The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 278.

41 the conclusion of the Quelch trial.77 Dudley and his fellow commissioners had no authority to try anyone for piracy.78

The conclusion of the trial was predictable enough. The commissioners found

Quelch guilty of all charges. The remaining twenty defendants were then separated into small groupings at the request of the defense. When the court convicted the next four crewmen after a quick trial, the remaining sixteen defendants changed their plea to guilty in the hopes of obtaining the Queen’s mercy. All received a death sentence except for

John Templeton and William Whiting, whom the court acquitted. John Quelch and five of his crewmates were executed on June 30, 1704, while the Governor quietly pressed the remaining condemned men into Royal Navy service over the next year.79

Although on the surface the case of William Kidd appears analogous to that of

John Quelch, such an interpretation ignores the evolving nuances of piracy in the decade leading up to the Quelch trial. There were similarities. Both men were guilty of acts of piracy as strictly written within the statutes, and the controversy surrounding each stemmed from the ambiguity caused by their valid privateering commissions.

77 Eight Persons Trial, in Baer, British Piracy vol. 2, 296; The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 266. 78 This oversight highlights the poor communication existing between the colonies at the turn of the eighteenth century. At the turn of the century information between the colonies and England was limited, and knowledge of the developments in the other colonies was nearly non-existent. However, Dudley was aware of at least the circumstances of William Kidd’s trial. When he refuted a defense challenge that contended the accused was unaware of Portugal’s diplomatic alliance with England at the time of the attacks, Dudley referenced the London trial, declaring “Kidd was Hang’d for Robbing the Great Mogul.” The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 276. Hanna, 300-329; Clifford Beal, Quelch’s Gold: Piracy, Greed, and Betrayal in Colonial New England (Washington D.C.: Potomac Books, Inc., 2008), 187. 79 As mentioned previously, servants and slaves almost always received the court’s mercy and were returned to their master’s service. John Templeton was Captain Plowman’s servant and fifteen years old. William Whiting was sick for the entire journey and did not participate in any of the piratical acts. The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 279-283. On July 15, 1705, over a year after their trial, Governor Dudley pardoned the last seven prisoners into Royal Navy service. Boston News-Letter, July 23, 1705.

42 Additionally, the piratical acts themselves were similar. Kidd preyed on the Great

Moghul’s ships in league with the , while Quelch attacked

Portuguese vessels, a wartime ally of England.80

Despite these similarities, subtle differences between the two pirates’ circumstances are important. One key difference is that Kidd had every reasonable expectation of returning to his home port unmolested. He had the backing of several powerful Whig members of Parliament in London, including the support of Lord

Bellomont, the local governor. Additionally, choosing New York as his origin port made logistical sense since the colony had a long history of supporting questionable privateering activities up until the time of his departure. Kidd’s mistake was that he underestimated the level of unwanted attention his commission, issued directly from King

William III, would attract when he deviated from his authorized objectives. The sailors of the Charles, by contrast, failed to realize the temporal and spatial variations of the politics of piracy, and they were eventually doomed for that oversight.81 Perhaps if they had sailed in 1696 when Kidd had, or if they had departed from Rhode Island or

Bermuda, they might have returned to live quiet lives of luxury.82 But Massachusetts was not Bermuda, and a careless privateer’s prospects in 1704 looked substantially worse than they had in 1696. Edward Randolph, the Governor of the , had

80 Quelch asserted he was unaware of the treaty between England and Portugal signed in May of 1703 and not printed in the London Gazette until June. Quelch sailed for in August. Governor Dudley accurately pointed out that his knowledge of the treaty was irrelevant since acts of aggression against neutrals was also considered piracy. The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 276. 81 For the changing views towards piracy in the colonies see Ritchie, 18-26, 140; Latimer, 279-280; and especially Hanna, 272, 304-339. 82 Origin port was of crucial significance to a privateer because it determined what Admiralty court would condemn their prize. The Charles crew was also doomed by their own success. £10,000 was an enormous sum of money, and one that would have been difficult for London to overlook, especially when the victims were allies during an active war.

43 led the charge for more stringent anti-piracy laws until his death in 1701. His replacement, Joseph Dudley, was outwardly hostile towards pirates from his early days in office. During his first session of the General Court on June 11, 1702, Dudley demanded

“that all false trade and piracys be with utmost diligence prevented and supprest.”83 The

Charles crew failed to understand that officially-sanctioned and commercial piracy were no longer welcome in the empire, and the powers that determined their fate increasing viewed their activities as intolerable.

The Quelch trial was perfectly positioned between two distinct eras of piracy, both as a holdover of the past and a precursor of the trials to come. The legality of

Quelch’s actions, and many before him, was a matter of labelling. At what point did acting outside one’s commission become an act of piracy? However, the Quelch trial also contained a political element that drove many of the later trials—specifically, the idea that colonial officials had to demonstrate their colony’s allegiance to the crown by cracking down on pirates. Neither the governor nor the General Assembly missed a chance to remind London of their vigilance during the Quelch trial. On July 12, 1704, the

Massachusetts Assembly addressed the recent trial in a letter to London,

We crave also by this Opportunity, humbly to express to your Majesty, our just Resentment and Detestation of the Piracies and Robberies lately committed by Captain Quelch and Company: And we hope the speedy Justice that has been done upon those vile Criminals, will vindicate the Government from the Imputation of giving any Countenance to, or favouring such wicked Actions.84

Using piracy trials to demonstrate a colony’s loyalty to the crown became a recurring theme throughout the English colonies in the subsequent decades. Colonies

83 Quote in Hanna, 304. 84 Massachusetts General Assembly to Queen Anne, July 12th, 1704, in “Diary of Samuel Sewall: 1674- 1729, volume VI, 5th series,” Massachusetts Historical Society (1888), 92-93; Bael, 114; Hanna, 334-339; Stephen C. O’Neill, “The Forwardness of Her Majesty’s Service: Paul Dudley’s Prosecution of Pirate Captain John Quelch.” Massachusetts Legal History 29, (2000), 34.

44 with a reputation for cozy relations with pirates, such as Rhode Island, Bermuda, and the

Bahamas, were particularly vulnerable to imperial pressure. Convicting a few sailors unlucky enough to be captured became the perfect way to demonstrate their adherence to royal policies. It also added a potentially unstable component to courtroom procedures.

Granting commissioners the authority to prosecute pirates in the colonies, but forcing them to use procedures largely unknown to them, all but assured the continuation of inconsistent and unpredictable trials until colonial officials gained the requisite knowledge and experience.

In a letter penned to the Board of Trade a few weeks after the trial, the governor defended his decisions, but asked that “I may be pardoned for any mistake in the tryals, the proceedings here being wholly new.”85 Dudley believed his rulings were fair and pragmatic, and achieved the objective of seeing justice done and the crown’s wishes fulfilled. He granted continuances to give the accused more time to prepare for trial and ordered that officials remove crown witnesses from the courtroom during complementary testimony to avoid tampering accusations.86 Even though he simultaneously limited the practical benefits of counsel, Dudley did permit the defense active and confrontational representation, a decision that held precedent in treason and piracy trials in England, but not in criminal trials in the colonies. As he explained to Quelch: “The articles upon which you are Arraigned, are plain Matters of Fact; however, that you may no Reason to complain of Hardship, Mr. James Meinzies, Attorney at Law, may assist you, and offer

85 Dudley to BOT, July 13, 1704, CSP: Col., no. 455, 216, in Hanna, 341. 86 The Tryal of Captain Quelch, in Baer, British Piracy vol. 2, 268-279. Massachusetts was the only confirmed Vice-Admiralty Court to permit defense counsel. This is likely more a representation of local tradition than any unusual interpretation of precedent in piracy trials. I will discuss this more when analyzing the Massachusetts trials occurring from 1717-1726. Hanna, 340; Baer, 258; Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” 541-550; Flaherty, 193-217.

45 any Matter of Law in your behalf upon your Tryal.” Dudley’s judicial rulings demonstrate that he conducted himself like someone who was confident in the defendant’s guilt and in his ability to secure their conviction. Making a few concessions to the defense in no way threatened the outcome of the proceedings.

The Governor, in a panic to defend his actions against the perception of incompetence, ordered the immediate publication of the trial records. It is obvious by the persistent manner that Massachusetts officials reminded London of their efforts, and absent any official condemnation, that the Board of Trade was satisfied with the outcome despite the process. Privately, however, at least one member of Her Majesty’s government was unnerved by the proceedings of the Vice-Admiralty Court. Although Sir

Henry Amherst’s original correspondence to Judge Samuel Sewall does not survive, the tone of Sewall’s response implies the former member of Parliament had reservations about the conduct of the proceedings.87 It is noteworthy that Governor Dudley’s decision to immediately publish the trial report, bypassing the customary censoring by the Board of Trade, and not the manner in which the commissioners conducted the proceedings, evoked the lone rebuke given to Dudley in the aftermath of the trial.88

The inconsistencies related to piracy trials and the political motivations behind them did not end with the Kidd and Quelch trials; they simply evolved as piracy itself evolved. Following proper procedures in piracy trials was not enough to satisfy imperial

87 Hanna, 341. 88 Ironically, the closest Dudley came to facing severe sanction from London was amid rumors his administration colluded with pirates during the Quelch affair. The Deplorable State of New England by reason of a Covetous and Treacherous Governor and Pusillanimous Counsellors, a vicious attack on Dudley’s policies, was published in London in 1708 and likely written by the colony’s famed minister Cotton Mather. One of the many accusations against Dudley’s government was that they extorted money from the accused pirates while they languished in Boston’s jail. Baer, British Piracy vol. 2, 257-259; Beal, 181.

46 officials, just like breaking them failed to result in any condemnation. In regard to their handling of pirates, the political position of governors in the English colonies at the conclusion of The War of Spanish Succession in the spring of 1713 was significantly better than it had been fifteen years earlier. Because of their lack of training and experience, it would be understandable if they still had no idea how to preside over a proper English piracy trial, but, by then, they knew it was unnecessary for them to do so—so long as the proceedings resulted in convictions.

IV. Sending a Message: Piracy Trials in South Carolina and The Bahamas

The end of hostilities with France and Spain brought piracy to the consciousness of English officials once again, but piracy emerged from its decade long slumber a profoundly different irritant than it had been during the seventeenth century. The return of peace fostered a major shift in the relationship between pirates and colonial communities as sea marauders turned their aggression against English vessels carrying

English goods in the . The fear this change of targets had on colonial coastal societies is easily observed in trial rhetoric, where court officials described pirates as such things as “Brutes, and Beasts of Prey,” who “proceed from the Rancour and

Virulency of their evil Hearts, from a craving Appetite, and an insatiable Thirst after inordinate Gain.”89 The response to this escalating threat to England’s preeminent trading empire was the expansion of piracy prosecutions in Vice-Admiralty Courts. However, the changing characteristics of piracy failed to stabilize courtroom procedures. This was

89 “Beasts of Prey,” in multiple trial accounts including, The Stede Bonnet Trial, in Baer, British Piracy vol. 2, 297; Eight Persons Trial, in Baer, British Piracy vol. 2, 300. ‘Rancour and Virulency’ quote from Roberty Auchmuty, Advocate General for the Massachusetts Vice-Admiralty Court. The Trials of Five Persons, in Baer, British Piracy vol. 3, 203.

47 partly because of the unwavering determination to fulfill the crown’s desire to end the threat of piracy to Atlantic trade and the willingness to manipulate courtroom procedures to facilitate that goal.

a. The Trials of the South Carolina Vice-Admiralty Court (Charles Town, 1716-

1718)

What is remarkable about eighteenth-century piracy trials is how little the Board of Trade concerned themselves with how Vice-Admiralty Courts delivered convictions.

The only thing a colonial judge knew for certain by 1716 was that the 1700 Piracy Act required them to try pirates using civil law procedures. However, the judges at all four known piracy trials occurring in South Carolina between 1716 and 1718 derived their authority from the 1536 Henry VIII Act and, therefore, conducted the proceedings under

English common law.90 These were the only piracy trials occurring in the colonies after

1704 in which the presiding court did not base its authority on the 1700 Piracy Act.

Interestingly, the decision to try pirates using English common law came directly from the proprietors. In November 1716, when Lord John Carteret and his fellow proprietors received word that nine suspected pirates were detained in the colony, they issued commissions to Vice-Admiralty Judge and ten local gentlemen, including instructions to establish a court of Admiralty in the colony. They also directed the new commissioners to follow common law procedure as laid out in the 1536 Henry VIII

90 “The Tryal of Nine Persons at Charles Town (November 27-30, 1716),” Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia; “The Tryal of Four Persons (June 21- July 3, 1717)”; “The Tryals of Major Stede Bonnet (October 28-November 12, 1718)”; “The Tryal of Twenty-Four Persons for Piracy at Charles Town (November 19-24, 1718),” Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia.

48 Act.91 It is uncertain how the passage of the Transportation Act of 1718 effected the proprietors instructions to the court; however, two of the trials occurred prior to the act’s drafting and likely had little to do with the initial orders.92 Nor is there any evidence to suggest that South Carolina court officials were even aware of the implications of the

Transportation Act during the last two trials in 1718.93

Unfortunately, the Stede Bonnet trial of 1718 is the only one of the four South

Carolina piracy trials for which a detailed account survives in the form of a contemporaneously published trial report. Although the court followed common law procedure in violation of the 1700 Piracy Act, it did follow it quite well.94 This proficiency should be credited to Nicholas Trott, who in his opening address to the court demonstrated a profound understanding of the history of piracy and its evolving position in English law. As one historian writes, Trott’s treatise is “arguably one of English

America’s first great contributions to the ‘law of nations’ and remains today one of the seminal works of piracy law.”95

91 Letter from His Excellency John Lord Carteret to Nicholas Trott Esq., Judge of the Vice-Admiralty in South Carolina, November 27, 1716. Tryal of Nine Persons. 92 The Tryal of Nine Persons; The Tryal of Four Persons. Article VII of the Transportation Act declared that courts in the colony had to follow the definition of piracy as defined by the act passed during the reign of William III, but the proceedings could follow the common law as stipulated by the 1536 Henry VIII Act. This ignored the Attorney General’s ruling in 1684 which declared that the Henry VIII Act did not extend to the colony’s because the act specifically designates the territorial limitations of the statutes jurisdiction. Declaring that the vice-Admiralty courts could use the Henry VIII Act required those courts to send accused pirates to London. It was this precise exercise that prompted the passage of the 1700 act. The Stede Bonnet trial in October, 1718, and the Trial of Twenty-Four Persons the following month, are the only known colonial piracy trials using common law procedure after the passage of the Transportation Act of 1718. 4. Geo. I, c. 11, vii-ix. 93 The Tryals of Stede Bonnet; The Tryal of Twenty-Four Persons. 94 The prosecution presented clear and detailed indictments and used accomplice testimony (permitted under common law). The court also spent considerable effort determining the active participation of individual defendants. The Tryals of Stede Bonnet. 95 Hanna, 389-390.

49 Unlike Rhode Island’s defiance in the late seventeenth century, it is unlikely the proprietors’ decision to disregard the civil law statute in favor of a jury trial had anything to do with defending charter rights. It is far more probable that using a local jury to convict pirates was the most effective way to demonstrate the colony’s newfound distaste for pirates, since historically it had been the use of juries that had acquitted the majority of pirates in colonial courts during the seventeenth century. It also helps to explain Judge

Trott’s aggressive instructions to the Stede Bonnet grand jury, when he roused their passion and anger to ensure that the accused pirates were indicted. In the clearest example of judicial advocacy of the period, Trott implied that the blood of their countrymen who had died capturing the defendants would be on the jurors’ hands if they failed to charge the prisoners,

I must not omit mentioning to you, that in this Attack made upon those Enemies of Mankind, many of our People lost their Lives in the Discharge of their Duty to their King and Country, and who fell by the hands of those inhuman and murdering Criminals which will now be brought before you. And the Blood of those murdered Persons will cry for Vengeance and Justice against their offenders. And therefore I hope the Consideration of doing Justice to those Persons who were kill’d in the Service of their Country, will make you use your Diligence in bringing the Criminals to Punishment, without which the Blood of those Persons will in a great measure be required at our hands.96

The aggressiveness of Trott’s language, and the fact that he refered to the defendants as criminals during the pre-trial proceedings, highlights the court’s urgency to secure convictions, which would make a clear statement to London and act as a deterrent to similar behavior.

The timing of the inclusion of the piracy articles embedded in the Transportation

Act of 1718, giving colonial officials their choice of statutory jurisdiction, is interesting coming so soon after these early South Carolina trials. Instead of reprimanding the

96 The Trials of Stede Bonnet, folio 5.

50 colony’s officials for violating the then binding statute of 1700, they adapted piracy law to give local officials additional flexibility when trying pirates. The success of these trials in combating piracy may have convinced London officials that they did not have to worry about local juries as much as they had two decades before.97

b. The Trial of Captain John Augur and Nine Others (New Providence, 1718)

Projecting an anti-pirate attitude and ensuring proper procedures were not inherently incompatible. Some Vice-Admiralty Courts tried pirates to appease London while staying within English law. In this way, the extent to which the change in the pattern of piracy after 1713 eased the difficulties associated with properly trying pirates, especially in newly established and inexperienced courts, cannot be overstated. The trial of Captain John Augur and nine of his crew at the New Providence Vice-Admiralty Court in December 1718 is the best example of this trend. Nearly flawless in their execution of

English civil law, the commissioners presided over one of the most judicious and procedurally sound trials of the era, despite having just created the court in the days prior to the hearings.

John Augur and his men, many of whom had previously accepted the King’s pardon for earlier piratical acts, sailed out of New Providence harbor in early October

1718 on the Mary. Instead of completing their merchant voyage, they immediately pursued vulnerable ships in the region. On October 6, they seized a under the command of Captain Greenway and deposited him and his men on a desolate island.

97 During South Carolina’s four piracy trials (1716-1718), the court found 52 of the 71 defendants guilty of piracy. Of the 52 individuals sentenced to death, the court executed 38 of them. The fate of the other fourteen are unknown. The Tryals of Stede Bonnet; The Tryal of Twenty-Four Persons; The Tryal of Nine Persons; The Tryal of Four Persons; Boston News-Letter, December 22-29, 1718.

51 Within a few days, Captains Cockram and Hornigold had tracked down the pirates and brought them back to New Providence. The trial followed the structure of the Piracy Act of 1700 closely.98 The commissioners, always numbering at least seven for each hearing, implemented civil law procedures without major deviations. The court permitted defendants to cross examine witnesses, as well as to call their own. The prosecution refrained from using accomplice testimony and successfully presented at least two eye- witnesses for every conviction. The court also detained John Hippes for a later decision when the prosecution failed to present enough positive evidence to render a decision on his guilt. They did, however, convict Hippes’s nine co-defendants, sentencing them all to death.

As careful as the court officials were to follow proper procedure, the intent behind the proceedings was clear: sending a resolute anti-piracy message to London officials. At a private consultation of the Governor’s council in the Bahamas two weeks before the trial, justified the creation of an Admiralty court on the island long known for its friendly relations with pirates. In a letter recorded by commissioner

William Fairfax, the council declared confidently that they could successfully carry out the crown’s wishes, “We are entirely of Opinion his Majesty will approve of the

Necessity for the Governours judicial Proceeding with those Pirates with a trial in the best manner We please according to law; And do believe the speediest Executions for

98 The only obvious deviation from established procedure was more curious than egregious. The prosecution charged the defendants with “Trickery, Mutiny, Felony, & Piracy.” This is the only instance of the language of ‘trickery’ appearing in an indictment for pirates. This may reflect the fact that many of the pirates took an oath of allegiance to the King in front of the Governor, and then almost immediately returned to their illicit activities. The Tryal and Condemnation of Ten Persons for Piracy, British National Archives, CO 23/1/73-79. Ten Persons trial.

52 those that shall be found guilty will conduce most to the Welfare of this Government.”99

Not only was the governor guaranteeing he could properly preside over a trial in accordance with English law, but that those found guilty would quickly meet a violent end.

Woodes Rogers oversaw the execution of eight of the convicted pirates, with only

George Rounsivel securing a last minute reprieve while standing on the gallows.100

Rogers denied the prisoners’ request for a delay of execution. In his ruling, he cited the extensive length of time they were permitted to make their defense, the weak fortifications on the island, and the lack of manpower to guard the prisoners. The new

Governor was clearly worried that a prison break, a real probability considering the number of current and former pirates in the vicinity of the Bahamas, would tarnish his efforts to convey an anti-piracy image to the crown. The executions themselves were a highly staged event intended to buttress that perception. Normally a community affair, the vast majority in attendance that day were supporters of the Governor and recently pardoned pirates. The court register, in his report to the Board of Trade, emphasized the changed nature of these men and their firm allegiance to the King:

It was observable that few men besides the Governours Adjutants were Spectators of the Trajedy, but what had lately deserv’d the same Fate; tho there were several who behav’d very well, & show’d respect to the Governour ever since his Arrival, and as they have been pardoned by the Gracious Act of His Majesty. It is to be hoped this last Spectacle will confirm their Resolutions of faith as they and many others have found him the most mercifull of Princes.101

99 “Minutes of A Private Consultation” held on November 28, 1718. Ibid. 100 The reason for George Rounsivel’s reprieve is not noted in the trial report. The records indicate his level of participation was at least equal to the rest and that he had previously accepted the King’s Pardon like many of his crewmates. Nor did his defense contain any substantial substance. Personal connections often played a key role in determining who among the condemned received a pardon and that may have been the case with Rounsivel. Ibid. 101 Ibid.

53 The governor was sending a message of solidarity to the British crown— an assurance that the council, the commissioners, the island, and even former pirates themselves now stood resolute in their determination to see pirates brought to justice.

V. Rising Threat, Rising Convictions: The Rackam and Ogle Trials

If seventeenth-century piracy trials hinged on the question of violating commissions, those after 1715 largely rested on determining the accused’s voluntary participation in activities that were indisputably piratical. Judges either ruled that presence on a pirate ship labelled all aboard as pirates, or attempted to ascertain the degree of willful participation for each individual. 102 Several factors went into determining whether a crewmembers involvement was voluntary—of which the most important were servant or slave status, age of the defendant, and what came to be called forced status. Because of the importance placed on independent agency, indentured servants and African slaves almost universally received the courts’ mercy, when they were charged at all. 103 England’s Attorney General L.C.B. Ward argued in 1701 that

“there must go an Intention of the Mind, and a Freedom of the Will, to the committing of

102 For more on the importance of free will in determining the status of pirates, read Leeson, 135-140, 155; Baer, xvi; Peter Hershey, “Regulating : The Existing and Developing Law Governing the Classification of Underwater Cultural Heritage as ‘Pirate-Flagged.’” University of Massachusetts Law Review 10, no. 1 (January, 2015), 121; Bael, 174; Johnson, 355; The Tryal of Captain John Quelch, in Baer, British Piracy vol. 2, 266, 279-283. 103 This was usually a hollow victory for servants and African slaves because they were not released from their labor contract. Courts permitted their former owners to reclaim them through the courts. The South Carolina vice-Admiralty court allowed the victims of Stede Bonnet to sue for compensation for losses. Included in their compensation were African slaves confiscated off of Bonnet’s ship when he was captured. A similar process occurred a few weeks later initiated by the victims of James Cole’s piratical activities, when 114 African slaves and indentured servants were found aboard the pirate vessel. “The Tryal of Twenty-Four Persons for Piracy at Charles Town (November 19-24, 1718),” Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia; “The Tryals of Major Stede Bonnet, and other Pirates (London: Benjamin Crowse, 1919),” Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia.

54 a Felony or Piracy. A Pirate is not to be understood to be under constraint, but a free

Agent; for in this Case, the bare Act will not make him Guilty, unles the Will make it so.”104 Claiming involuntary participation became the primary defense for accused pirates in the post-war trials, although not every court official agreed with the validity of such a defense. During the William Fly trial in 1726, Robert Auchmuty, King’s Advocate for

Massachusetts’s Vice-Admiralty Court, argued that:

in order to Strike the Passions they [accused pirates] represent in moving terms, what dangers they encounter’d, as the Risque of having their Brains blow’d, and what Severities they underwent, as sweating & the like, before they departed from their native Integrity. All of which, if prov’d, will not, strictly speaking, amount to an Exemption from Punishment; For neither Necessity, Major Vis, or Self Preservation, can legally justify the Commission of an Act…105

The court’s determination of a sailor’s status was frequently arbitrary. Worse yet, some justices made no effort to determine the active participation of individuals aboard pirate vessels, leading to instances of questionable rulings even by eighteenth-century standards.

a. The Tryals of Captain John Rackam and other Pirates (Jamaica, 1720-1721)

The most egregious example of a Vice-Admiralty Court equating presence on a pirate ship with active participation occurred in Jamaica during the John Rackam trials.

Captain Jonathon Barnett surprised and captured “” and his crew as they anchored at Negril Point in late October, 1720. A few hours before the short engagement,

Rackam invited nine fishermen aboard his vessel and showered them with drinks and

104 “The Arraignment, Tryal, and Condemnation of Captain William Kidd, for Murther and Piracy, upon Six Several Indictments… As also, the Tryals of Nicholas Churchill (et al.)… To which are added Captain Kidd’s Two Commissions: One under the Great Seal of England, and the Other under the Great Seal of the Court of Admiralty (London: J. Nutt, 1701),” in Baer, British Piracy, 182. 105 Quote from Robert Auchmuty, King’s Advocate of the Massachusetts Bay Vice-Admiralty Court. It is important to note that the Vice-Admiralty commissioners disagreed with Auchmuty’s position, eventually acquitting an individual on forced status. Sixteen Persons Trial, in Baer, British Piracy vol. 3, 248.

55 stories. After their capture, the prosecution charged the fishermen alongside the pirate crew with piracy and felony. However, because they were not on board during any piratical activities, the prosecution stretched the indictment to include events which occurred two days before the fishermen boarded Rackam’s vessel. 106 The defendants admitted to reluctantly assisting in rowing the vessel during the engagement with Captain

Barnett, but insisted that they surrendered willingly and never handled any weapons. The prosecution presented no witnesses to the men’s individual involvement during the altercation. , a previously convicted crewman of Rackam’s, corroborated the fishermen’s story, adding that Rackam used violent means to gain their assistance.107

Since the fishermen were not on board during any piratical activities, the prosecution should have charged them at worst with being accessories to piracy. However, this option was burdensome and expensive, since in 1720 colonial officials were still required to send accessories to London to be tried. Nor could the prosecution simply release them.

Doing so would have undermined their ability to send a clear anti-piracy message to

London. Instead, Sir Nicholas Lawes, and twelve lessor judges, found all nine of the fishermen guilty along with the pirate crew, executing six of them in . 108

With the exception of South Carolina’s Vice-Admiralty Courts, officials never ignored the 1700 Piracy Act completely. Many commissioners followed the statute when they could and bent it when they needed to. For example, as in the Kidd and Quelch trials, commissioners sometimes ignored the civil law requirement that two eye-witnesses

106 The Tryals of Captain John Rackam, in Baer, British Piracy vol. 3, 1-4. 107 It is noteworthy that the court permitted John Eaton to testify at all. Since he was convicted in an earlier trial, the justices should have barred his testimony unless he received a royal pardon prior to taking the oath. Eaton was executed in mid-February, 1721. Ibid., 45-48. 108 The Jamaican proceedings were some of the harshest sentences for the entire period. Of 29 defendants, the court found 27 guilty, and executed 21 of them. Mary Read and Anne Bonny successfully petitioned the court for mercy on account that they were pregnant at the time of sentencing. Ibid., 28-48.

56 were necessary to convict someone of a capital offense. The trials of John Rackam and his allies in the Jamaican Vice-Admiralty Court continued this trend, but with an uneven application. The commissioners applied the two eye-witness rule to some pirates, but not all. The court found Mary Read and Anne Bonny, the only two confirmed women pirates during the period, guilty of piracy, robbery, and felony as specified by articles three and four of their indictment, for which multiple eyewitnesses testified against them, but not guilty of the charges in articles one and two. The prosecution presented one eyewitness for the first article, and none for the second. Similarly, the court convicted of the first two articles but found him not guilty for articles three through six, where the prosecution failed to produce the necessary number of eye-witnesses. Both decisions followed statute law perfectly.

However, the court found , tried immediately after Read and Bonny, guilty of two charges of piracy, robbery, and felony despite only one eyewitness testifying against him. This demonstrates how the commissioners followed civil law when circumstances allowed and knowingly violated procedure when they did not. Once the court secured convictions against accused pirates on multiple articles, it was far easier to follow the letter of the law and acquit them on others. This was a meaningless gesture which helped buttress the illusions of procedural fairness and conformity to English law.109

b. The Trial of the Pirates Lately Taken by HMS Swallow (HMS Weymouth,

Guinea, 1722)

109 Ibid., 28-29, 37, 57.

57 There was a definite correlation between experience with civil law and procedural regularity in piracy trials; however, not every Vice-Admiralty Court had the advantage of seasoned officials studied in the nuances of English piracy law. 110 When 165 of Captain

Bartholomew Roberts’ former crew went before a bench consisting mostly of naval officers in March of 1722, the trials frequently diverged from procedures mandated by the 1700 statute. These proceedings were marked by significant and frequent violations of English law, as unqualified and unprepared commissioners made little effort to follow statutes that they were only vaguely familiar with.

The trial of Robert’s crew was a remarkable affair for multiple reasons, the most obvious being that the court tried 165 suspected pirates in a series of unprecedented hearings that lasted five weeks aboard the HMS Weymouth. The entire process provides the clearest example of commissioners deviating from the Piracy Act of 1700 and English law in general. There is no evidence to suggest that the commissioners themselves had any experience dealing with legal matters prior to receiving their commissions for the

Ogle trials. Captain Mungo Herdman of the HMS Weymouth acted as president of the court, while the Admiralty filled the rest of the bench with Royal Navy officers and the

Royal African Company’s top regional official.111 The 1700 Piracy Act sanctioned such a composition, but it was far from an impartial setting. The same officers required by the

110 The proliferation of Atlantic piracy and the British government’s continued crackdown in the decade following the War of Spanish Succession saw more English piracy trials than the previous fifty years combined. This increased exposure to civil law procedures and piracy trials, in addition to the widespread popularity and dissemination of printed trial reports, gave many commissioners the experience and knowledge that their counterparts lacked in the years following the implementation of the 1700 Piracy Act. For the growing importance of print in English colonial culture view, Hanna, Pirate Nests. 111 Much as the British East India Company had input into the structure of the 1700 Piracy Act, large trading interests occasionally influenced individual trials as well. Anticipating the eventual capture of the elusive Captain Bartholomew Roberts and his crew, officers of the advised the Admiralty on future prosecutions and participated in the hearings themselves. James Phipps, the Captain- General for the RAC at Cabo Corso Castle, was one of the commissioners for the trials.

58 1721 Piracy Act to capture or kill pirates at every opportunity or face charges themselves presided over the fate of the most active pirates of the era.112

To better manage the prosecution of so many defendants, the commissioners decided to try the accused in two large groups, eighty in the first hearing and eighty-five in the second. The prosecution called three officers from the HMS Swallow, the vessel responsible for the pirate’s incarceration, to testify against all 165 defendants. As interested witnesses, these officers should have been barred in civil law proceedings. The three witnesses stood to collect the crown’s reward for every captured pirate who was found guilty, and, therefore, they had a vested interest in seeing these men convicted.113

The witnesses testified to the events leading up to the capture, not to any specific piratical acts. They also failed to identify individual participation, stating simply that the prisoners before them were all taken from aboard the Ranger and Fortune. In fact, the court made no attempt during the trial phase to prove that the defendants were indeed pirates.

Interestingly, the prosecution charged the defendants with unlawful resistance to a Royal

Navy vessel, not the traditional piracy, robbery, and felony. The prisoners’ designation as pirates was taken for granted. They were pirates because they were taken aboard a pirate ship. The court quickly found all 165 defendants guilty of unlawfully resisting and attacking Captain Ogle’s HMS Swallow. In the minds of the commissioners, the only matter to resolve was separating the willing from the forced crew members.

112 Ibid., 79-82. The court appears to have placed at least a minimum level of protection against judicial impropriety. A letter from Captain to the British Admiralty Office contended that the court barred him from sitting as a justice because of his role as the captor of the accused pirates. This gesture was a necessary step since Ogle wrote the indictment and testified during the trial. Captain Ogle to Admiralty Office, September 3, 1722. Ibid., 75-78. 113 Ibid., 82-86, 159-160. For more on the RAC’s advising of the Admiralty pre-trial see Baer, British Piracy, 67-71.

59 The court’s chaotic solution for determining the voluntary status of the accused violated English law and disregarded the proper procedures established by the Piracy Act of 1700. In an attempt to ascertain the voluntary status of the men, it held individual secondary hearings where the men could prove their forced participation, a decision the commissioners termed a “merciful resolution.” They also encouraged the prosecution to submit evidence of crimes not included in the indictment during these supplementary hearings,

That further Evidence should be brought on that Particular against every Person singly; and that Circumstances of Burning, Sinking, or Robbery of any Ship in which any one of ‘em was immediately concerned, tho’ it was not particularly specified in the Indictment, would yet be a Conviction the Man or Men were Voluntiers in this, tho’ it might want a Form, still carried the Reason of Law with it.114

The commissioners’ concluding words imply that they knew that their approach was procedurally irregular—and remains the clearest acknowledgment of the ad-hoc approach that defined the entire proceedings.

Seven of the original commissioners held hearings from March 22 through April

20. They called 165 convicted men individually, “particularly to acquit themselves of being Volunteers, in their Resistance of the King’s Ship.”115 The justices based their determination of voluntary or forced service on several factors: each man’s relationship with his crewmates and level of participation, length of service, age, and cooperation with the prosecution.116 This last aspect, the willingness of convicted men to testify against their fellow sailors, significantly shaped the structure of the hearings. Since the court had already declared them guilty of the only crime with which they were charged, they were incapable of providing sworn testimony under civil law. It was not technically

114 The Ogle Trials, in Baer, British Piracy vol. 3, 83. Baer, British Piracy, 69-71. 115 The Ogle Trials, in Baer, British Piracy vol. 3, 87. 116 Ibid., 87-160.

60 accomplice testimony, since those before the bench were already convicted and the court did not request a pardon and present them as crown witnesses. However, it was a highly questionable practice that mirrored accomplice testimony in several ways.

In at least one case, a sailor implied that if the court acquitted him of the charges he would cooperate with the prosecution. Henry Glasby, the most active witness during this exploratory phase, argued during his personal hearing “that it was unlikely, as he appeared qualified for any maritime Employment, he should ever take this Course again, and that he had twice endeavored at an Escape from them, tho’ with the utmost hazard of his Life; and lastly, that his Evidence would be of great use to the Court for trying the remaining Prisoners.”117 The court obligingly acquitted Glasby of the charges they had technically already convicted him of and immediately put him to work. Of the 118 hearings that occurred after his acquittal, Glasby testified in 83 of them, resulting in 25 acquittals, 47 death sentences, and 11 men retained in custody for transport to London’s

Marshalsea prison. The commissioners relied heavily on three witnesses, Glasby, Stephen

Thomas, and Robert Lilburn, with the latter two testifying in 29 and 23 cases respectively.

Although the court offered the prisoners an opportunity to call their own witnesses, the structure of the proceedings blatantly favored the prosecution. In many instances, quasi-accomplice testimony was the only evidence presented, and these witnesses testified to crimes and events that were not listed in the indictment.118 The proceedings, deviating so far from established statute and precedent, quickly dissolved

117 Ibid., 100-101. 118 Ibid., 87-158.

61 into arbitrary rulings. The court sentenced James Cofins to Marshalsea prison despite the fact that the only evidence produced by the prosecution for his participation was the testimony of two of his crewmates that they knew nothing of his or activity while aboard the Ranger.119

From a jurisdictional standpoint, the most egregious error on the part of the court was the prosecution's failure to charge the defendants with piracy in the indictment. Since the commissioners established the court, and drew their authority to try the accused, from the Piracy Act of 1700, this oversight threw the legitimacy of the entire proceedings into question. The statute gave commissioners the authority to assemble a court to try anyone

“against whom information of Piracy, Robbery, or Felony upon the Sea, shall be given upon Oath.”120 The fact that the men standing before them were pirates seemed so certain to the commissioners that they did not bother to charge them with the crime. But failing to charge them with piracy prohibited the court from deriving its authority from the commissions established under the William III statute, which was exclusive in nature.

Their questionable legal authority became apparent to the commissioners at some point during the month-long period of individual hearings. On April 19, following the conclusion of two trials and 165 separate investigatory sessions, the court charged John

Jessop with “Piracy and Robbery upon the High Seas.” Jessop had already been found guilty of unlawful resistance to and attack against a Royal Navy vessel during the first mass trial and sentenced to death for voluntary participation during his separate hearing.

Whether someone challenged the authority of the court to operate under the 1700 Piracy

119 Ibid., 155. 120 11 & 12 William III, c. 7, I.

62 Act while failing to charge anyone with piracy, or court officials became aware of their mistake on their own, is uncertain. However, it is clear that the commissioners realized their error and corrected it by convicting Jessop for his role in the seizing of the brigantine Hannibal in October of 1721. Jessop does not appear to have been a particularly high-ranking member of the pirate crew, nor is there evidence to suggest his actions diverged from those of his crewmates, in any way that might have justified the court singling him out for additional prosecution. In fact, he was one of twenty men who later successfully petitioned for a reduction of his sentence to for the

Royal African Company. 121

Trying one individual after the proceedings had concluded to solidify the legitimacy of their jurisdiction was perfectly consistent with the commissioners’ approach to the trial. John Jessop likely became the scapegoat because the former captain of the Hannibal was available for testimony and they needed someone who had boarded his ship at the time of the attack.122 The lack of experience and knowledge by the commissioners aboard the Weymouth demonstrates how important both were to the process of piracy trials in the Vice-Admiralty Courts. The Rackam and Ogle trials also

121 It is interesting that only 20 of the 91 men convicted during the trial at Cabo Corso Castle petitioned for a reprieve from death sentence to indentured servitude. Nationality may have played a role in determining the fate of these convicted men. All 20 of the petitioners were from England, despite the fact that the crew was of mixed origin, including many from the English colonies, Ireland, Scotland, and the Netherlands. Ogle Trials, Baer, 81-83. The granting of King’s Mercy awarded the recipient service, not freedom, and the life expectancy aboard a Royal Navy ship was considerably shorter than on pirate vessels.121 That was undeniably the case with those associated with the Ogle trials. Not a single one of the twenty men who walked past the gallows filled with the sounds of their wailing compatriots lived out their seven-year indenture. The Ogle Trials, in Baer, British Piracy vol. 3, 71. 122 The Ogle Trials, in Baer, British Piracy vol. 3, 158. Many of Roberts’ crew aboard the Royal Fortune and the Ranger had not been onboard long before Captain Ogle successfully engaged them off the African coast. The court’s belief that “many of the Prisoners found on Board were New-entred Men…” was a major factor in their decision to hold individual hearings to determine the pirates level of cooperation. Quote in Ibid., 84.

63 show the prevailing influence of outside forces, as the interest of the crown, London merchants, and large trading companies aligned in the post-war years with the Royal

Navy and local communities to eliminate piracy’s threat to maritime trade.

VI. Recrafting the Message: New England Piracy Trials, 1717-1726

Massachusetts’s Vice-Admiralty Court operated some of the most procedurally correct and consistent piracy trials of the era. The continuity among senior court officials contributed considerably to this regularity. The inexperience of the court during the

Quelch trial was replaced over the next two decades by knowledgeable court officials capable of presiding over proper proceedings. This retention of personnel created a stability inside the courtroom, staffed with experienced, knowledgeable individuals properly following statute law in most instances.123

a. The Trials of Eight Persons Indicted for Piracy (Boston, 1717)

Colonial governors felt genuine pressure, and took frequent action, to demonstrate that their colonies aggressively pursued the capture and prosecution of pirates in accordance with the Board of Trade’s policies. However, by the 1720s, not every colony felt that pressure equally. Massachusetts had already demonstrated a determination to convict pirates during the Quelch trial and again in 1717, despite facing legitimate legal

123 Paul Dudley, the Attorney General for the colony and lead prosecutor in 1704, maintained his position during the Samuel Bellamy hearings in 1717, but played a less active role during the trial itself than he had for Quelch. Robert Auchmuty served as defense counsel during the Bellamy crew trials and as the King’s Advocate for the last two piracy trials in the colony. John Valentine was the register of the court during the Quelch trial, defense advocate for Bellamy’s crew, and the King’s Advocate during the Edward Low crew trials in 1723. Governor William Drummer assumed the role of president of the court from Governor Samuel Shute in 1722 and continued in that capacity for the final three piracy trials in New England. James Meinzies, brother of Quelch’s defense advocate, served as Judge of the Vice-Admiralty for every piracy trial in Massachusetts and Rhode Island from 1717 to 1726. The Eight Persons Trial, in Baer, British Piracy vol. 2, 299, 310; Thirty-six Persons Trial, in Baer, British Piracy vol. 3, 173-175; Five Persons trial, in Baer, British Piracy vol. 3, 199, Sixteen Persons trial, in Baer, British Piracy vol. 3, 237-238.

64 challenges to the court’s jurisdiction. During the Bellamy crew trials, held in the Vice-

Admiralty Court in October 1717, defense advocate Robert Auchmuty argued that the court’s commissions were invalid since they were issued by Queen Anne, who had died three years earlier. This was the same jurisdictional argument made in Jamaican proceedings in 1701 and upheld by England’s Attorney General. The King’s Advocate

James Smith countered that King George’s proclamations for the continuation of colonial officials and commissioners and the recent instructions sent to the court were justification of the court’s authority.124 The court unsurprisingly upheld its own jurisdiction to try the prisoners. However, without valid commissions, the court had no authority to try pirates.

The crown responded to this blatant disregard of English law with their usual pragmatism. The Board of Trade issued new commissions on April 3, 1718, six months after the execution of the six English pirates in Boston Harbor.125 The commissioners’ decisions reiterated the colony’s commitment to prosecute pirates aggressively in accordance with the crown’s policies.

This was the lone questionable ruling of the Bellamy crew trials, which followed civil law remarkably well for a court whose last piracy trial had been the erratic Quelch proceedings thirteen years earlier. Unlike Paul Dudley’s insistence during those proceedings that the new statute was designed to supplement the 1536 Piracy Act, King’s

Advocate James Smith argued during his opening statement that the Piracy Act of 1700

124 The Eight Persons Trial, in Baer, British Piracy vol. 2, 298. Queen Anne died August 1, 1714. Boston News-Letter, September 20-27, 1714. King George’s Proclamation for the continuation of colonial officers and commissioners, Boston News-Letter, March 21-28, 1715. 125 The Tryals of John Rackam, in Baer, British Piracy vol. 3, 14-15. Massachusetts officials hanged the six men convicted of piracy on November 15, 1718. The Eight Persons Trial, in Baer, British Piracy vol. 2, 308.

65 required the strict use of civil law procedure.126 The court returned guilty verdicts for six of the eight defendants— granting acquittals to Thomas South and John Davis on the basis of their having been forced men.

b. The Tryals of Thirty-Six Persons for Piracy (Newport, 1723)

The Massachusetts Bay Colony’s Vice-Admiralty Court benefitted greatly from the experience and knowledge gained from presiding over multiple piracy trials. But over two decades of vehement anti-piracy rhetoric, policies, and trials rewarded their commissioners with something besides practice. It also secured the trust of royal officials to carry out their piracy policies faithfully. The dubious history of Rhode Island’s relationship with pirates and the Board of Trade’s confidence in the Massachusetts court meant that when Edward Low’s crew was captured and brought to Rhode Island for trial, the BOT bypassed the colony’s governor and packed the bench with Massachusetts officials. Addressing the court, Advocate-General John Valentine alluded to the colony’s dubious reputation:

And ‘twill doubtless be said for the Honour and Reputation of this Colony (tho’ of late scandalously reproach’d to have favour’d, or combined with Pirates;) and be evinced by the Process and Event of this Affair, that such Flagitious Persons, find as little Countenance and Shelter, and as much Justice at Rhode-Island, as in any other Part of his Majesties Dominions.127

Lt. Governor Drummer and the fellow commissioners rewarded the royal government’s faith in them by presiding over a model of judicial procedure despite facing complications similar to those that forced deviations from established procedure during trials in other colonies. The Ranger, under the command of , and the

Fortune, captained by Low, mistook the HMS Grey-Hound for a defenseless

126 The Eight Persons Trial, in Baer, British Piracy vol. 2, 301-302. 127 Trial of Thirty-Six Persons, in Baer, British Piracy vol. 3, 176.

66 merchantman off the New England coast. They immediately ordered an attack on the

British warship. Commander Peter Solgard captured the Ranger and her surviving crew, while Low escaped aboard the Fortune. Since the accused intended to commit a piratical attack, that hostile intent permitted the prosecution to consider the sea-battle that ensued an act of piracy. The court therefore only had to prove participation in that one act in order to secure convictions for piracy.128 This eliminated the need to establish when individual pirates came on board the pirate vessel, a factor that led to dubious convictions during the Rackam trials. The commissioners granted defense motions for three individual trials and permitted previously acquitted pirates to testify in later proceedings for the benefit of the defense, requests that were denied in the Kidd trial. The court found eight of the thirty-six defendants not guilty, including Joseph Swetser, whom the court acquitted based on the testimony of these witnesses.129

Although it may seem from these rulings that Massachusetts’s officials were over- stepping their authority to ensure a fair trial for the accused, they were actually following proper English law and precedent. Examining the New England piracy trials of the era only further highlights the irregular nature of trials in the other Vice-Admiralty Courts.

What was unique to Massachusetts, and where the court did act outside the 1700 Piracy

Act, was its provision of defense counsel. Massachusetts was the only colony to permit defense representation during a piracy trial, which it did in three of the four trials it held.

This practice may have been unique to the Bay Colony, since the Low crew trials in

Rhode Island failed to grant the accused counsel despite the dominance of the courtroom

128 The prosecution charged the defendants with two acts of piracy, felony, and robbery. The first for the taking of the Amsterdam Merchant, and the second for the piratical attack of the HMS Grey-Hound. Ibid., 174-175. 129 Ibid., 171-188.

67 with Massachusetts officials.130 On this point, Massachusetts deviated from the norm among colonial courts, skewing more toward British piracy trials.131

It is ironic that London trusted the colony’s commissioners despite the fact that they provided accused pirates with far more legal protections than any other colonial court. This was likely for several reasons. First, as previously discussed, the colony had an anti-piracy agenda going back two decades, with a proven track record for aggressively convicting pirates under the Piracy Act of 1700. Second, the significance of defendants having representation was lessened because of the limitations placed on advocates during the trials. The practical benefit of employing counsel was severely hampered by the haste that officials rushed most accused pirates to trial and the inability of defense counsel to question matters of fact or to provide opening and closing statements. These restrictions may have contributed to the colony’s tolerance for their presence in the courtroom and the crown’s indifference towards the practice. Defense advocate George Hughes addressed this reality directly to the court, “As it is my Province to speak only to Matters of Law, I shall endeavor to perform it as well as the very little time I have had will allow.”132 Even when counsel correctly challenged the proceedings, as occurred in the trials of Quelch and Bellamy, prosecutors deflected and commissioners denied the motion. Defense attorneys’ jobs were made considerably harder by the court’s hostility towards the accused.

130 The commissioners allowed defense counsel during the Quelch, Bellamy, and Five Persons trial. However, there is no evidence of Fly requesting or using any counsel for his hearing. 131 Although England strictly forbade counsel in common felony trials, as previously discussed, counsel was permitted in the Kidd case in England. The Scottish Admiralty court also tolerated an aggressive defense representation during the Thomas Green trial in 1705. The Tryal of Captain Kidd, in Baer, British Piracy vol. 2; The Tryal of Captain Thomas Green, folio 9. 132 Five Persons Trial, in Baer, British Piracy vol. 3, 208.

68 Robert Auchmuty’s career trajectory highlights another factor that limited the effectiveness of defense counsel in colonial piracy trials. Auchmuty progressed from defense attorney to King’s Advocate and finally ended up as Judge of the Vice-Admiralty

Court in 1733. The paucity of educated attorneys in the colony all but assured that, at one point or another, defense counsels would switch sides and accept royal appointments— as long as they did not cause too many problems for the court. 133 Defense advocates in piracy trials had to operate within certain accepted parameters, questioning the prosecution’s procedures while displaying the appropriate level of deference to the commissioners. George Hughes felt it necessary to begin his admirable defense during the Five Persons Trial in 1726 by explaining his reasons for doing so:

It is not without Regret that I appear before this Honourable Court in behalf of the Prisoners at the Bar: But the Sense of my Duty, and my real Desire that the World, and more especially their Country men, should be convinced of the fair and impartial Trial they will receive, weigh down all Objections to my appearing before them.134

Hughes was aware that lawyers became successful in the Massachusetts Bay

Colony by supporting the court vigorously and defending pirates reluctantly. Despite the limitations the Massachusetts court placed on defense attorneys, John Meinzies, Robert

Auchmuty, and George Hughes defended pirates admirably. Had they been defending clients charged with ordinary crimes, their efforts would likely have been far more successful. However, the changing conditions of piracy were easing pirates’ prosecution, not securing their future, which was desirable for crown and merchant alike. This evolution of piracy also influenced the confidence of courtroom officials. The easier it was to convict someone without breaking statutory procedure, the more legal safeguards could be permitted without threatening the outcome. Therefore, because of the

133 Murrin, 542-550. 134 Five Persons Trial, in Baer, British Piracy vol. 3, 208.

69 characteristics of post-war piracy, the Massachusetts Vice-Admiralty Court was able to preside over relatively consistent trials and provide significant safeguards for defendants, all while maintaining the trust of London officials.

c. The Tryals of Sixteen Persons for Piracy (Boston, 1726)

With London’s support of the Bay Colony’s Vice-Admiralty Court fully secured by the mid-1720s, the motives behind piracy trials in Massachusetts evolved from demonstrating loyalty to the crown to promoting the reputation of the colony’s legal system. John Valentine, the King’s Advocate during the Rhode Island hearings of 1723, criticized the inconsistencies and questionable practices of previous piracy trials, informing the court that he would “call the King’s Evidence to prove the several Facts, as so many distinct Acts of Piracy on the Prisoners, Not by light circumstances and

Presumptions, Nor by Strain’d Conjectures, but by clear and positive Evidence.”135 Few other colonies were in a position to make this adjustment as early as Massachusetts, because no other colony had as long or as successful a legal campaign against pirates as the Bay Colony. By the time William Fly and his crew stood before the Massachusetts

Vice-Admiralty Court in July 1726, the propaganda behind piracy trials in the colony had fully evolved from sending an anti-piracy agenda to London to embodying English justice.

In April 1726, Fly led a mutiny aboard the commercial vessel Elizabeth. The mutineers threw their captain overboard and spent the next three months terrorizing New

England’s shipping lanes. Fly’s apprehension was the result of a prisoner uprising aboard

135 Trial of Thirty-Six Persons, in Baer, British Piracy vol. 3, 176.

70 his vessel. When he ordered six of his trusted crew onto a recently captured schooner to seek prizes, eleven captives being held against their will overpowered the remaining five pirates and turned them over to the authorities in Boston. The history of English piracy trials in the colonies would suggest two likely courses of action for the Massachusetts court. First, officials could have equated presence on a pirate ship with piracy and prosecuted all those on board vigorously for piracy. Second, and more common, they could have charged Fly and his four associates, using the eleven captives-turned- liberators as witnesses. Instead, the prosecution chose a third path, which demonstrates the changing message behind these high-profile cases. The indictment charged all sixteen men aboard the Fame’s Revenge with piracy, felony, and robbery. The prosecution tried the eleven captives first, making no attempt to present evidence for their conviction and actively arguing for their immediate acquittal. King’s Advocate Robert Auchmuty declared the innocence of the defendants to the court, “I therefore Articled the Gentleman on Tryal, not with the prospect of Conviction, but that the Laws may be Complied with.

And now he has an Opportunity of Manifesting his Innocency before Your Honours, whose Wisdom and Justice will render his Acquittal much more Honourable, if by you judged Not Guilty.”136 However, the law did not require that he charge everyone aboard a pirate ship with piracy, a fact of which Robert Auchmuty was aware.

Piracy trials were always about sending a message to someone. However, the

Massachusetts Bay Colony used the high-profile piracy case of 1726 to send a different message to a wider audience. The Fly case was a show trial, highlighting the fairness of the colony’s legal system expressed through a dichotomy of sailor’s choices— the bad,

136 Quote from Trial of Sixteen Persons, in Baer, British Piracy vol. 3, 239.

71 piracy, exemplified by Fly and his crew; and the good, merchant sailors who valiantly overtook their captors along with a legal system possessing the wisdom to distinguish between the two.137

d. The Trials of Five Persons for Piracy (Boston, 1726)

Arguing that Massachusetts was the most consistent of the Vice-Admiralty Courts does not mean it was free from controversial rulings, as we have seen in the Bellamy trial. In piracy trials, courts routinely acquitted indentured servants and African slaves, arguing that forced labor restricted free will and effectively prohibited individuals from making their own decisions. Youth was another factor contributing to acquittals and reprieves. Massachusetts officials acquitted two boys, John Fletcher, age fifteen, and

Thomas Jones, age seventeen, during the Low crew trials in Newport in 1723. In explaining its decision, the court specifically mentioned the defendants’ ages as the primary basis for their release.138 However, three years later, several of the same commissioners convicted and executed John Baptist, Junior, a thirteen-year-old boy.139

The commissioners hanged Baptist Junior despite a novel defensive strategy during an era of piracy trials known for the “Hackney Defence made by every Pirate upon Trial, namely, That he was a forced Man.”140 After arguing unsuccessfully for a

137 The commissioners for the Massachusetts Vice-Admiralty court found four of the five defendants in the second trial guilty of four to six articles of piracy, robbery and felony. They acquitted Morrice Cundon on all charges because he successfully proved that he was not a member of the crew at the time of the alleged acts, something the Jamaican court failed to do with the fishermen in the Rackam trials. Ibid. 237- 253. 138 Trial of Thirty-Six Persons, in Baer, British Piracy vol. 3, 180-191. 139 The King’s Advocate Robert Auchmuty argued against an age limit, declaring that “it clearly appears he was a free Agent, and capable of making Legal Distinctions.” William Dummer Esq. Lt. Governor of Mass., was President of the Court for both trials, while Nathaniel Byfield and John Menzies retained their commissioner roles. Five Persons Trial, in Baer, British Piracy vol. 3, 209-214, quote on 214. 140 Sixteen Persons Trial, in Baer, British Piracy vol. 3, 248.

72 dismissal based on the defendant’s age, advocate George Hughes attempted to establish an equivalence between the master/servant and father/son relationships: “Your Honours will likewise be pleased to consider the great Influences a Father hath upon a Son,” he declared, “not only in his Example but Precepts, as corrupt Nature is prone enough to evil; the Perswasions of a Father, or the fear of his Frowns and severe Corrections, back’d with his Example, are strong and powerful Instigators to do Evil.”141 The court had charged John Baptist Senior, his son, and three Native Americans with piracy for their seizure of a fishing sloop, ironically named the Tryal, in a Nova Scotia harbor in

October 1726. Hughes’ goal was to demonstrate to the court that the boy had no choice but to follow his father’s orders and was therefore incapable of making his own decisions, in the same way that slaves must obey their masters. The argument was logical and, if successful, would have resulted in an acquittal, as was typical with servants and slaves. Instead, John Baptist, Junior, became the youngest person known to be executed under the Piracy Act of 1700. Larger considerations of state heavily influenced the trial, as colonial leaders once again used the platform of piracy trials to send a message—this time to the Native Americans and former French subjects occupying the newly acquired

142 British territories around Nova Scotia.

VII. Conclusion

Piracy’s actual threat to Britain’s maritime empire never lived up to the rhetoric in the Admiralty courts or the laws of Whitehall, and, by 1726, the illegal enterprise had collapsed in the face of a series of relentless imperial efforts. Legislation, trials, and

141 Five Persons Trial, in Baer, British Piracy vol. 3, 209. 142 For more on the political motivations of the trial view, Baer, British Piracy vol. 3, 193-196.

73 executions were pieces of a larger strategy aimed at dismantling the support networks necessary for piracy’s continued existence. The increase in convictions and executions, and the falling profits associated with attacking English merchant ships, made a pirate’s life undesirable to all but the most desperate sailors by the mid-1720s.143 No element of the crown’s anti-piracy campaign was publicized as much as the trials themselves.

Examining these trial reports at the time of England’s emergence as the dominant commercial force in the Atlantic allows historians to better understand the increasing influence London maintained over its Anglicizing colonies during the first quarter of the eighteenth century. It also highlights the importance colonial officials placed on demonstrating their adherence to imperial policy and a genuine willingness on both sides to work together to eliminate a mutual threat.

No policy better displayed the lengths the English government was willing to go to end the piratical threat than the Piracy Act of 1700. The Board of Trade expected compliance with its new statute, but few officials in the colony knew anything about the finer points of civil law. This judicial and legal inexperience, combined with a relentless desire to rid the oceans of pirates, kept piracy trials inconsistent affairs throughout the era despite the passage of successive laws designed to facilitate the process. When evaluating the colonial piracy trials of the early eighteenth century, we must do so in relationship to their adherence to the Piracy Act of 1700. What we discover are many colonial officials making a sincere effort to adhere to imperial policies and law. When court officials lacked knowledge and experience in civil law and piracy trials, proceedings followed a

143 Ritchie, 236-237; , Under the Black Flag: The Romance and the Reality of Life Among the Pirates (New York: A Harvest Book, 1995), 203, 228-234; Burgess, The Politics of Piracy; Hanna, Pirate Nests; Leeson, 198-199; Latimer, 280-281.

74 style of pragmatic justice where precedent gave way to instrumental rulings. The commissioners’ prior experience with and knowledge of piracy trials, therefore, were major factors in determining the procedures of the individual cases. However, because securing the conviction of pirates was always the paramount concern of the burgeoning merchant empire, justices frequently allowed crown prosecutors liberties contrary to established precedent. Policy over process was the thread that tied all of the piracy trials of the era together.

The transformation of Atlantic piracy in the first three decades of the eighteenth century was remarkable. The successive revisions of English piracy laws, the decentralization of the Admiralty courts, the vilification of pirates by government officials and merchants, and the very evolution of piracy itself all occurred at a rapid pace. Nowhere was this dramatic transformation more visible than in the spectacle surrounding the gallows. Kidd’s disbelief and feelings of betrayal, and Quelch’s confusion and anger at his poor luck, were replaced by Fly’s steadfast determination to die as he lived, defying a society that exploited poor sailors. Such resistance proved futile. The crown’s aggressive crackdown on piracy was a complete success and merchants were poised to expand the volume of Atlantic trade exponentially over the following decades. Overseas traders were the obvious winners, and pirates the clear losers, of the royal government’s efforts to eradicate piracy. However, it is important not to dismiss the developments for building state capacity that were grounded in the legislation and resources targeted at the Vice-Admiralty Courts established throughout the periphery of the empire. Demonstrating loyalty to London by aggressively prosecuting pirates would not have been possible for colonial officials without the

75 strengthening of bureaucratic institutions and the increased presence of the Royal Navy.

Therefore, the long-term consequence of London’s anti-piracy campaign was not simply safer overseas trading routes, but the creation of legitimate and sophisticated provincial courts constructed on the English model. By the 1760s, the British government would use these courts once again as primary institutional tools to implement their new policies in the colonies in light of new perceived threats to the empire’s political and economic interests.144 However, London’s efforts to coerce colonial adherence to imperial initiatives would prove far less successful than their campaign to cleanse the seas of pirates.

144 Ubbelohde, The Vice-Admiralty Courts and the American Revolution.

76 Bibliography

Secondary Sources

Baer, Joel H. British Piracy in the Golden Age, vol. 1-4. London: Pickering & Chatto, 2007.

Beal, Clifford. Quelch’s Gold: Piracy, Greed, and Betrayal in Colonial New England. Washington D.C.: Potomac Books, Inc., 2008.

Beattie, J.M. Crime and the Courts in England, 1680-1800. Princeton: Princeton University Press, 1986.

Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400- 1900. New York: Cambridge University Press, 2002.

Benton, Lauren. Legal Pluralism and Empires: 1500-1850. New York: New York University Press, 2013.

Bilder, Mary Sarah. The Transatlantic Constitution: Colonial Legal Culture and the Empire. Cambridge: Press, 2004.

Brown, M.D. “The Treaty of Union, 1707.” Journal of Sydney Society for Scottish History 4, (1996).

Burgess Jr., Douglas R. The Politics of Piracy: Crime and Civil Disobedience in Colonial America. New Hampshire: University Press of New England, 2014.

Cordingly, David. Under the Black Flag: The Romance and the Reality of Life Among the Pirates. New York: A Harvest Book, 1995.

Crump, Helen J. Colonial Admiralty Jurisdiction in the Seventeenth Century. London: Longmans, Green and Co., 1931.

Dickinson, Edwin D. “Is the Crime of Piracy Obsolete?” Harvard Law Review 38, no. 2 (January, 1925).

Dow, George Francis and John Henry Edmonds. The Pirates of the New England Coast, 1630-1730. Salem, MA: Marine Research Society, 1923.

77 Flaherty, David H. “Criminal Practice in Provincial Massachusetts.” Publications of the Colonial Society of Massachusetts, vol. 62. Maine: Anthoenson Press, 1984.

Graham, Eric J. Seawolves: Pirates & the Scots. Edinburgh: Birlinn Limited, 2005.

Hanna, Mark G. Pirate Nests and the Rise of the British Empire: 1570-1740. Chapel Hill: University of North Carolina Press, 2015.

Hershey, Peter. “Regulating Jolly Roger: The Existing and Developing Law Governing the Classification of Underwater Cultural Heritage as ‘Pirate-Flagged.’” University of Massachusetts Law Review 10, no. 1 (January, 2015).

Lane, Kris E. Pillaging the Empire: Piracy in the Americas, 1500-1750. New York: M.E. Sharpe, 1998.

Langbein, John H. The Origins of Adversary Criminal Trial. New York: Oxford University Press, 2003.

Langbein, Lerner, & Smith. History of the Common Law: The Development of Anglo- American Legal Institutions. New York: Aspen Publishers, 2009.

Leeson, Peter T. The Invisible Hook: The Hidden Economics of Pirates. New Jersey: Princeton University Press, 2009.

Latimer, Jon. of the : How Piracy Forged an Empire, 1607-1697. London: Weidenfeld & Nicolson, 2009.

Murrin, John M. “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts.” Colonial America: Essays in Politics and Social Development. Edited by Stanley N. Katz and John M. Murrin. New York: Alfred A. Knopf, 1983.

O’Neill, Stephen C. “The Forwardness of Her Majesty’s Service: Paul Dudley’s Prosecution of Pirate Captain John Quelch.” Massachusetts Legal History 29, (2000).

Pitt, Steven J. “Cotton Mather and Boston’s ‘Seafaring Tribe.’” The New England Quarterly 85, no. 2 (June, 2012).

78 Rediker, Marcus. Between the Devil and the Deep Blue Sea. Cambridge: Cambridge University Press, 1987.

Rediker, Marcus. Villains of All Nations: Atlantic Pirates in the Golden Age. Boston: Beacon Press, 2004.

Ritchie, Robert C. Captain Kidd and the War Against the Pirates. Cambridge: Harvard University Press, 1986.

Rubin, Alfred. The Law of Piracy. Honolulu: University Press of the Pacific, 1988.

Snow, Edward Rowe. Pirates and Buccaneers of the Atlantic Coast. Beverly, MA: Commonwealth Editions, 1944.

Ubbelohde, Carl. The Vice-Admiralty Courts and the American Revolution. Chapel Hill: The University of North Carolina Press, 1960.

Wrath, L. Kevin. “The Massachusetts Vice-Admiralty Court.” Law and Authority in Colonial America. Massachusetts: Barre Publishing, 1965.

Primary Sources

Baer, Joel H. British Piracy in the Golden Age, vol. 1-4. London: Pickering & Chatto, 2007.

The Tryals of Joseph Dawson (et al.)… for several Piracies and Robberies by them Committed, in the Company of Every the Grand Pirate, near the Coasts of the East-Indies; and several other Places on the Seas. Giving an Account of their Villainous Robberies and Barbarities (London: John Everingham, 1696). British Library, shelfmark 515.1.6.(22).

The Arraignment, Tryal, and Condemnation of Captain William Kidd, for Murther and Piracy, upon Six Several Indictments… As also, the Tryals of Nicholas Churchill (et al.)… To which are added Captain Kidd’s Two Commissions: One under the Great Seal of England, and the Other under the Great Seal of the Court of Admiralty (London: J. Nutt, 1701). British Library, shelfmark 6495.l.3.

79 The Arraignment, Tryal, and Condemnation, of Capt. John Quelch, and Others of his Company, for Sundry Piracies, Robberies, and Murder, Committed upon the Subjects of the King of Portugal, Her Majesty’s Allie, on the Coast of Brasil. (London: Ben. Bragg, 1704). British Library, shelfmark 1418.k.25.

The Trials of Eight Persons Indited for Piracy. Of whom Two were Acquitted, and the Rest found Guilty. (Boston: John Edwards, 1718). Gottingen Library, shelfmark MC 83-1021:2003.

The Tryals of Captain John Rackam, and other Pirates… Who were all Condemn’d for Piracy, at the Town of St. Jago de la Vega, in the Island of Jamaica, on Wednesday and Thrusday the Sixteenth and Seventeenth Days of November 1720. As also, the Tryals of Mary Read and Anne Bonny, alias Bonn (Jamaica, 1721). British National Archives, shelfmark CO 137/14/9-30.

A Full and Exact Account, of the Tryal of all the Pyrates, Lately Taken by Captain Ogle, on Board the Swallow Man of War, on the Coast of Guinea. (London: J. Roberts, 1723). National Library of Scotland, shelfmark C.18.3.

Tryals of Thirty-Six Persons for Piracy, Twenty-Eight of them upon Full Evidence were Found Guilty, and the rest Acquitted. At a Court of Admiralty for Tryal of Pirates, Held at Newport within His Majesties Colony of Rhode-Island and Providence-Plantations in America (Boston: Samuel Kneeland, 1723).

The Trials of Five Persons for Piracy, Felony and Robbery. (Boston: S. Gerrish, 1726). Gottingen Library, shelfmark MC 83-1021:2818.

The Tryals of Sixteen Persons for Piracy. Four of which were Found Guilty, and the rest Acquitted. (Boston: Joseph Edwards, 1726). Gottingen Library, shelfmark MC 83-1021:2819.

Boston News-Letter. Boston: John Campbell, April 17-24, 1704- December 29, 1726. Western Reserve Historical Society, call number 05 S1.1 001.

Johnson, Charles. A General History of the Robberies & Murders of the Most Notorious Pirates (London: T. Warner, 1724). Reprinted, London: Conway Maritime Press, 1998.

80 The Trial and Condemnation of Ten Persons for Piracy (The Trial of John Augur). British National Archives, shelfmark CO 23/1/73-79.

The Tryal of Captain Thomas Green and his Crew, Pursued before the Judge of the High Court of Admirality of Scotland; And the Assessors appointed by the Lords of Privy Council. Edinburgh: Andrew Anderson, 1705. Library of Congress, http://hdl.loc.gov/loc.law/llds.00173320048.1 accessed on March 18, 2016.

The Tryal of Four Persons for Piracy at Charles Town. Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia.

The Tryals of Major Stede Bonnet, and other Pirates. (London: Benjamin Cowse, 1719). Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia.

The Tryal of Nine Persons at Charles Town. Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia.

The Tryal of Twenty-Four Persons for Piracy at Charles Town. Pre-Federal Admiralty Court Records, Province and State of South Carolina, 1716-1763. Record Group 21: Records of the District Courts of the United States. National Archives, Atlanta, Georgia.

81