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Full text of "The law of piracy"

The 

Law 

of 

Piracy 



The Law of Piracy 



Alfred P. Rubin 



Naval War College Press 

Newport, Rhode Island 

1988 



Library of Congress Cataloging-in-Publication Data 

Rubin, Alfred P. 
The law of piracy. 

(U.S. Naval War College international law studies; v. 63) 

Bibliography: p. 

Includes index. 

1. Pirates. 2. Pirates — United States. 3. Pirates — Great 
Britain. I. Title. II. Series. 
JX4444.R83 1988 341.77 88-17962 



DEDICATION 



To Susanne, who put up with it all. 



TABLE OF CONTENTS 

FOREWORD xi 

PREFACE xiii 

I. THE ORIGINS 1 

Introduction 1 

The Greek and Roman Conception of "Piracy" 4 

The Reorganization of the Renaissance 13 

"Piracy" Enters Vernacular English as "Privateering" 13 

"Piracy" Enters the Legal Vocabulary as "Outlawry" 18 

The Legal Order and Outlawry 19 

Positivist Theory; Law as a Support for Policy 19 

Some Technicalities: Property Law and Privateering 21 

Naturalist Theory: Law as a Moral Order Governing 

Policy 26 

Some Implications 30 

English Municipal Law and Piracy in the Renaissance 32 

Jurisdiction and Substance; Admiralty and Common Law 32 

Admiralty Commissions and Common Law: The Statutes of 

1535 and 1536 36 

In Rem Property Adjudications 38 

Outlawry, Crime and Licenses 40 

Coke's Synthesis 44 

Summary 48 

Notes 50 

II. THE EVOLUTION OF THE CONCEPT OF PIRACY IN 
ENGLAND 66 

English Law and International Law 66 

Commissions: Privateers as "Pirates"; Positivism 

Rampant and Naturalism Resurgent in the 1690s 69 

English Commissions: Positive Grace v. Natural Justice 78 

Animo Furandi and Hostes Humani Generis 82 

Jurisdiction and Legal Interest 86 

Naturalists v. Positivists (Again): Molloy v. Jenkins 86 

The Courts 92 

Jurisdiction 92 

Commissions Become Evidentiary Instead of 

Determinative 94 



viii Contents 

"Piracy" or "Felony" in English Law as Adopted in 

American Courts 101 

The Classical Publicists: Zouche to Bynkershoek 104 

The "Law of Nations" 104 

The Growth of Positive Law Concepts as an Implication of 

National Sovereignty 105 

The Classical English Synthesis: Blackstone and 

Wooddeson 108 

Notes 113 

III. THE UNITED STATES OF AMERICA 

AND THE LAW OF PIRACY 122 

The Basic Framework 122 

"Piracy" as a Municipal Law Crime in the United States 127 

The Court System 127 

The Substantive Law of 1790 128 

The Definition 128 

Jurisdiction 137 

The Substantive Law of 1819 144 

The Attempt to Avoid Problems of Definition, Jurisdiction 

and Foreign Commissions 144 

Substance Re-Examined 147 

Jurisdiction Re-Examined 151 

Foreign Commissions and Unrecognized Belligerents 154 

The Statutes 154 

The Early American Experience 156 

The Latin American Wars for Independence 157 

Evolution of the Labels 162 

The Civil War of 1861-1865 174 

The Later Practice 184 

Summary and Conclusion 186 

Notes 188 

IV. BRITISH PRACTICE IN THE NINETEENTH 

CENTURY 201 

Eurocentrism and British Imperial Law 201 

"Pirates" as Permanent Enemies in British Imperial Law 203 

The Legal Rationale for Naval Action 203 

The Bounty Legislation of 1825 Retroactive to 1820 204 

The New Law Applied 206 

The East India Company in the Persian Gulf 206 



Contents ix 

The British Navy in the Eastern Mediterranean Sea 211 

The East India Company, the Navy and the Courts in 

Southeast Asia 220 

Politics and "Piracy" in Southeast Asia 220 

Mohamed Saad; "Pirate" or "Patriot? 226 

Lushington Unleashes the Navy's Naturalists 230 

British Imperial Legal Policy and Real Public International Law 238 

The British Change of Definition 238 

Applying the New Definition 240 

The Kwok-A-Sing Case 240 

The Law Officers Retreat 242 

The Empire Advances 245 

The Selangor Incident 245 

The Legal Tangle 249 

Dropping the Legal Facade 254 

The Limits of the British Imperial Law of Piracy 258 

Introduction 258 

The Huascar Incident 259 

Conclusions 270 

Notes 275 

V. "PIRACY" IN THE TWENTIETH CENTURY 292 

"Piracy" by Analogy 292 

Rebels and War Criminals 292 

Aircraft Hijacking 298 

Attempts to Codify the International Law of Piracy 305 

Introduction 305 

The League of Nations Effort 305 

The Harvard Research in International Law 308 

Introduction 308 

The Theory Behind the Harvard Draft 309 

The Text of the Harvard Research Draft Convention 313 

The Anglo-American Position 317 

The Law of the Sea Codification of 1958 319 

The International Law Commission Draft 319 

"Piracy" Today 337 

Notes 346 

APPENDICES 

I. English Statutes 359 

LA Offences at Sea Act of 1536, 28 Henry VIII c. 15 359 



x Contents 

LB The Piracy Act of 1700, 11 & 12 William III c. 7 362 

I.C The Bounty Act of 1825, 6 George IV c. 49 370 

II. American Statutes 373 

II. A 15th Cong., 2nd Sess., ch. 77, Piracy Act of 3 March 

1819 with notes by Peters, 3 Stat. (1850) (510-514) 373 

II. B 16th Cong., 1st Sess., ch. 113, Piracy Act of 15 May 1820, 

3 Stat. 600-601 381 

II. C 18 U.S.C. Sec. 1651-1661, United States Code (1982 ed.) 

Vol. 7, pp. 323-325 383 

III. CODIFCATIONS 386 

III. A The Harvard Research Draft Articles on Piracy, 1932, 26 
American Journal of International Law Special Supplement 
743-747 (1932) 386 

III.B The United Nations Convention on the Law of the Sea, 
Montego Bay, 10 December 1982, U.N. Doc. A/CONF. 
62/122, articles 100-107 391 

ABBREVIATIONS 393 

BIBLIOGRAPHY 397 

INDEX 429 

INDEX OF CASES 443 



XI 

FOREWORD 

The study of International Law has been an important and integral part 
of the curriculum at the Naval War College since its founding in 1884. This, 
the sixty-third volume of the "Blue Book" series, continues a Naval War 
College tradition begun in 1901 of publishing scholarly treatises and articles 
that contribute to the development and understanding of International Law. 

Professor Alfred P. Rubin of the Fletcher School of Law and Diplomacy 
of Tufts University, the author of this volume, has contributed a work of 
exceptional scholarship that will long be regarded as an authoritative 
reference material not only with respect to the law of piracy, but to the 
whole of international law. Professor Rubin's work is considered to be 
informative, comprehensive, and provocative. 

The opinions expressed in this volume are those of the author and are 
not necessarily those of the United States Navy nor of the Naval War 
College. 

Ronald J. Kurth 

Rear Admiral, U.S. Navy 

President, Naval War College 



xiii 

THE LAW OF PIRACY 

by 
Alfred P. Rubin 

PREFACE 

This book began many years ago, when, as a student at the University 
of Cambridge, looking into the legal rationalizations used by British leaders 
to justify using gunboats to secure the remote fringes of their commerce, 
I found that in the first three quarters of the 19th century in the Malay 
Peninsula it was common to refer to the bands headed by young nobles as 
"pirates." It is true that they robbed merchants, primarily Malay merchants, 
in the waters of the Archipelago and the rivers of the Peninsula. But it is 
also true that few of their depredations occurred on the high seas in the 
nineteenth century British conception of the term, i.e., further than three 
nautical miles from the nearest governed land; that the nobles had at least 
the kindly acquiescence of the Sultans accepted by the British and the Malays 
of the Peninsula as possessors of sovereign authority to grant privateering 
licenses; and that "pirate hunting' ' expeditions by the British occasionally 
hunted their prey ashore. 

This use of the term "piracy" as a justification for military action seemed 
to me inconsistent with its use in courts of law, and, indeed, as my research 
progressed I found that there were cases in British courts in the Malay area 
arising out of some incidents in which the courts and the naval authorities 
disagreed as to what "piracy" meant. The results of this research were 
published as parts of two books whose principal focus was elsewhere, and 
an article included in the Grotian Society Papers 1968. Having completed my 
studies of the legal rationalizations for European imperial adventures in the 
Malay area, of which the "piracy "-suppressing justification was a significant 
but not dominating part, I laid aside that work for other things. 

My appointment in 1981 as Charles H. Stockton Professor of International 
Law at the U.S. Naval War College, Newport, Rhode Island, gave me the 
opportunity to return to the subject of "piracy" and I have happily done 
so. It has been a fascinating legal challenge to disentangle the threads of 
ancient, renaissance and modern municipal and international law and 
politics, and to analyze how the current confusion regarding the law of 
"piracy" arose and is maintained. Among the very many works on various 
aspects of the subject there are scholarly analyses that seem to have been 
overwhelmed by the mass of less thoughtful writing and adversary briefs 
for definitions of "piracy" that would serve parochial political or legal ends 



xiv Preface 

at the expense oflegal integrity or objectivity. What seems to have happened 
is not a mere evolution oflegal and political thought, but the use of a legal 
word to justify political action that is justifiable neither by the law nor by 
wise policy. In a few cases, the use of the word "piracy" to justify a quick 
"solution" through military action has even obscured the availability of 
sounder, more persuasive and better based legal rationales — to the cost of 
the political leaders who might have done better had they known more about 
the law. But that tale belongs to the text itself. 

I must thank the administration and staff of the Naval War College at 
Newport, Rhode Island, for unfailing support, particularly the three Staff 
Judges Advocate, Dave Albrecht, Dennis Mandsager and Jim Brush, and 
the staff of the Naval War College Library. The administrators of The 
Fletcher School of Law & Diplomacy allowed me a sabbatical year at the 
Naval War College to conduct the research; they were very understanding 
of the continuing pulls on my time and energy. Finally, the staffs of the 
Widener, Langdell and International Legal Studies Libraries at Harvard 
University were most helpful when I had trouble finding obscure works that 
no other library in the world would have had at all. 

Special acknowledgment must also be made for the help of Donald 
Lippincott, a student at The Fletcher School of Law & Diplomacy, whose 
knowledge of classical Greek was indispensible; Guive Mirfendereski, also 
a student at The Fletcher School, whose work on the history of the Persian 
Gulf was more than useful; Professor Martin Glassner of Southern 
Connecticut State College, whose eagle eye and strategic presence made 
it possible to keep up on some important recent developments; Professor 
Edward Gordon of Albany Law School and The Fletcher School of Law 
& Diplomacy, who referred me to an important article I had overlooked; 
Frank Uhlig, Jr., Publisher of the Naval War College Press, for finding maps 
and pictures and editorial help; Professor George Bunn, a successor to the 
Stockton Chair at the Naval War College, whose comments and suggestions, 
particularly regarding the organization of the first chapter, Daniel 
Webster's contributions to the American tradition and the final conclusions 
were most valuable and perceptive; and Robert Laske, Editor of the Naval 
War College Review, and his sterling associates from the Publications Division 
who did all those things necessary to bring this work from manuscript to 
printing. Several others have read parts of the book and given 
encouragement that helped me to get through the interminable middle 
stages. To all I am grateful. 

Of course, all responsibility for errors of scholarship, as well as for 
misstatements, confusions and the difficulties of reading my infelicitous 
prose, is mine alone, alas. 

Alfred P. Rubin 



I 

The Origins 



"Pirate .... Middle English from Latin pirata, from Greek peirates, 'attacker,' from 
peiran, to attempt, attack, from peira, an attempt .... From Indo-European root per-." 5 

"per- 5 .... To try, risk;" from which come the modern English words: fear, peril, 
experience, expert, empire, and pirate. 

American Heritage Dictionary of the English 
Language (William Morris, ed.) (1969), pp. 998, 1534. 

The word "piracy " is used in modern English in many different ways, 
from a half-admiring description of the shrewd practices of an 
assertive businessman cutting the corners of morality but strictly within the 
law, to a highly technical legal word of art related to some crimes for which 
people have been hanged. In between lie uses that relate to unrecognized 
rebels, naval vessels acting beyond their authority, naval vessels acting within 
their national commissions to interfere with peaceful commerce in ways the 
international legal order will not tolerate, and many other shades of meaning. 
The most cursory examination of learned literature, treaty articles and 
national statutes shows at least six different meanings: (1) A vernacular usage 
with no direct legal implications; (2) An international law meaning related to 
unrecognized states or recognized states whose governments are not 
considered to be empowered at international law to authorize the sorts of 
public activity that is questioned, like the Barbary States of about 1600-1830, 
the Malay Sultanates of about 1800-1880, and the Persian Gulf Sheikhdoms of 
about 1820-1830; (3) An international law meaning related to unrecognized 
belligerency, like Confederate States commerce raiders and privateers during 
the American Civil War of 1861-65 in the eyes of the Federal Government of 
the United States; (4) An international law meaning related to the private acts 
of foreigners against other foreigners in circumstances making criminal 
jurisdiction by a third state acceptable to the international community despite 
the absence of the usual territorial or nationality links that are normally 
required to justify the extension abroad of national criminal jurisdiction; (5) 
Various special international law meanings derived from particular treaty 
negotiations; and (6) Various municipal (i.e., national, domestic) law 
meanings defined by the statutes and practices of individual states. It is 
possible to elaborate this list to take account of ambiguous or inconsistent 



2 The Law of Piracy 

state practice and diplomatic correspondence, special technical interpreta- 
tions within the learned international legal writings and different states' 
positions as to particular incidents, and other traditional modes of legal 
analysis. 

All of these uses of the word "piracy" have been argued from time to time 
to rest on classical writings and precedents. In the days leading up to the 
Westphalian settlement of Europe in 1648, citations to Greek and Latin 
sources were a major element of legal argumentation. Those renaissance legal 
arguments and the municipal law of the European sea powers, particularly 
England, purported to rest on Roman law and usage. Thus, to understand 
fully the modern meanings of the term "piracy" it is necessary first to 
examine the Greek and Latin writings and Roman usages. 

Time changes the meaning of words, and it is an error in scholarship to 
attribute to ancient or even not very ancient authors the full range of 
implication that a word carries in current usage. An amusing example appears 
in the 14th century Middle English poem Sir Gawain and the Green Knight where 
the Green Knight, entering King Arthur's great dining hall, asks, "Where is 
. . . the governour of this gyng?" and it can be shown by analyzing the uses of 
the word "governour" and "gyng" ("gang") in other medieval works that 
the modern cockney connotation of jocular contempt that might be implied 
from the context of the Green Knight's speech is simply not there. 1 

When, in 1811, Sir T.S. Raffles, the British Lieutenant Governor of Java, 
wrote to Lord Minto, the Governor-General of India, that "It is unfortunately 
the practice in some of the Malay States rather to encourage the young nobles 
of high rank, especially those of the Rajah's own extraction, whose 
maintenance would fall otherwise upon the Rajah himself, to subsist 
themselves by piratical practices" 2 he was using the word in a non-legal sense 
insofar as the attitudes of the Malays was being explained. At the same time, 
from its European legal implications he concluded that suppressive activities 
by the British Navy might be justifiable as a matter of international law. He 
seems to have been conscious of the two meanings of the word when he 
advised that the British in the first instance, rather than bearing the burden 
themselves of sweeping the "pirates" from the seas, should "oblige every 
Rajah to refuse to every description of pirates . . . any sort of assistance or 
protection in his own territories." 3 This suggestion, with much legal 
difficulty, became translated into British policy and assertions of interna- 
tional law over a period of sixty or seventy years. 

In the light of this and similar persistent confusions, before embarking on 
an analysis of the precise meaning of the word "piracy" as used in ancient 
texts it might be useful to set forth a few of the many instances in which the 
word or its derivatives has been used by translators to reflect their own ideas 
as to when it is appropriate to use it despite the fact that the word does not 
appear in any form in the text being translated. Since so much nineteenth and 



Origins 3 

twentieth century writing about "piracy" cites ancient usages that in fact 
exist only in the nineteenth and twentieth century purported translations, but 
not in the ancient texts, it might be possible to clear away some common 
misconceptions of our own time, when some citations to earlier scholars, 
which in turn rest on still earlier scholarly citations, which in turn appear to 
rest on non-legal translations of words that have no connection with the 
ancient conception of "piracy," seem to have become conventional wisdom; 
i.e., seem to be accepted as correctly reflecting the ancient concepts merely 
because so often repeated in scholarly writing. 

Coleman Phillipson, whose analysis of classical conceptions of interna- 
tional law is justly famous to the degree that it seems to have almost cut off 
later scholarship, wrote: "In the Homeric age the practice [of "piracy"] was 
looked upon as a creditable . . . means of enrichment." 4 Without disputing 
Phillipson's point, which will be examined more closely below, it is 
interesting to check his citations. These include Homer's Iliad, 5 and Odyssey, 6 
and Thucydides's History of the Peloponnesian War. 7 In fact, in none of these 
places cited by Phillipson does the word "peirato" or any of its derivatives 
appear in the original Greek. 8 Instead, the original Greek uses derivatives of 
the word "diapertho" 9 or the word "/ew." 10 Indeed, even if the word "peirato" 
did appear in the places cited in Homer, it would not indicate a clear usage of 
the word, since, aside from some clearly inappropriate contexts, what most 
commonly appears is a formula of words that seems to have been a customary 
greeting addressed to strangers: 

Is it on some business, or do ye wander at random over the sea, even as 'pirates,' who 
wander hazarding their lives and bring evil to men of other lands? 11 

This particular formula, which does not include the word "peirato" or any of 
its derivatives in the original Greek, is repeated in many places, including 
Hesiod 12 and Thucydides. 13 And yet it is the very Thucydides passage not 
using the word "peirato" or any of its derivatives that is mentioned by at least 
one very eminent twentieth century scholar as evidence that "piracy" in the 
modern sense was accepted as legitimate in ancient Greece. 14 Obviously, it 
was not "piracy" that was legitimate, but something else, labeled with a 
different word, that may or may not have been analogous to the modern legal 
conception of "piracy." 

It may be significant that the more or less standard glossary, Autenrieth's 
Homeric Dictionary, defines "peiran . . . -ato" as "test, attack, make trial of, put 
to proof, contend with" etc., but does not record any usage in Homer that 
would correspond with a sense of illegality or even roving to seize the 
property of others regardless of legality. 15 

Similarly, in Herodotus 's history of the Persian War, the passage most 
frequently cited as mentioning "piracy" does not use the Greek word or any 
of its derivatives, and that passage is translated properly as saying merely the 
coming of "Bronze men of the sea" was predicted by an oracle. 16 



4 The Law of Piracy 

Perhaps the most egregious anomaly of translation is in the frequent 
citation to an historical episode in which the citizens of the "polis" of 
Halonnesos refused to receive their property back from Philip of Macedon as 
a gift, but insisted that they had never lost title since the capture had been by 
"pirates, " who lack the legal power to alter rights to title in property. But the 
Greek original does not contain the word "peirato" or any of its derivatives. 17 

As for Roman sources, 18 again some of the most often cited writings 
purportedly defining the classical conception of "piracy" do not use the word 
in either its Greek or Latin ("pirata") form. For example, Cicero, in his second 
speech Against Verres, does not mention "pirata" in the passage cited time and 
again by renaissance and later scholars as one of the sources of the law of 
"piracy." The word he uses is "praedones." 19 And Livy's translator gives a 
totally distorted impression of the legal relations between the Great 
Pompey's son, Sextus Pompey, and Octavian Caesar, building on the 
distorted picture painted by the not wholly impartial Livy himself, in this 
passage: 

When Sextus Pompey again made the sea dangerous through acts of piracy [latrociniis], 
and did not maintain the peace to which he had agreed, Caesar undertook the inevitable 
war against him and fought two drawn naval battles. 20 

In the original Latin the word "pirata" or its derivatives does not appear. 21 

There are other anomalies in this passage that point out the need for great 
circumspection in drawing far-reaching legal conclusions from the use of 
Latin words in ancient sources. The word "hello" (war; belligerency) is used 
to describe the conflict between two claimants to some public authority in 
Rome in the turmoil following Julius Caesar's assassination and before 
Octavian achieved full mastery of the political system and became Caesar 
Augustus. But if the Roman law of war applied, as the word would seem to 
indicate, then the fundamental Roman conception of "war" as a legal status 
with legal implications would have applied in the absence of declaration. And 
it would have applied against those who commit "latrociniis" acts. This path of 
analysis leads to complications of significant magnitude and in the light o{ 
other writings seems wholly misguided. It is very likely that Livy was using 
the word "latrociniis" perjoratively and not legally, and the word "hello" to 
mean "struggle" or some similar non-legal idea, rather than war. Since these 
distinctions are vital to a careful legal analysis, it may be concluded that not 
only translations, but even original texts must be read very carefully before 
legal implications are drawn from them. 

The Greek and Roman Conception of "Piracy" 

Thucydides's description of political life in the Aegean area rests not only 
on the poetic formula of greeting, but on other passages in Homer 22 and, no 



Origins 5 

doubt, oral and perhaps lost written traditions familiar enough to his 
generation that citation was not felt to be necessary by him. Modern 
scholarship sees this proud description as evidence not only of a political 
system accepting the organized use of force by small bands without pejorative 
implications or any deep analysis o£ the political structure of the bands 
themselves, 23 but also of a far-reaching economic order. During the 10th and 
9th centuries B.C., 24 such wars and raids reflected the struggle for survival 
and economic gain by combinations of families and small communities as part 
of a larger economic system in which "Forcible seizure followed by 
distribution in this fashion, was one way to acquire metal or other goods from 
an outside source." 25 The seizures did not necessarily involve essential 
supplies, and the concepts of justifiable behavior apparently extended to 
permit these raids by Greeks against Greeks and non-Greeks alike merely for 
gain. Given the state o^ politics and economics in the area, such raids were 
probably not the principal means of commerce, and it has been suggested that 
gift-exchanges were the main mechanism for economic transfers. 26 The 
system might bear some similarity for purposes of this study with the Viking 
political and economic system of Scandinavia in the 9th to 11th centuries 
A.D. 27 

The earliest time when the surviving literature in Greek uses the word 
peirato and its derivatives to describe anybody appears to be about 140 B.C., 
and it is to some specific political and economic communities of the Eastern 
Mediterranean littoral that the word was applied. Polybius, whose Histories is 
the principal source of much of our knowledge of the rise of the Roman 
Republic, uses the word peiraton in a passage translated by W.R. Paton in a 
way avoiding the confusions wrought by too frequent use of the English word 
"pirate," but creating an equivalent confusion. He refers to: "Euripidas with 
two companies of Eleans together with his freebooters [peiraton] and 
mercenaries . . . " 28 Just what "freebooter" means in that context seems very 
unclear. But what does seem clear is that the word "peirato" and its derivatives 
was being applied not to brigands or others outside the legal order, but to 
small communities including fighting men who were regarded as capable of 
forming alliances and participating in wars as they were fought between 
acknowledged political leaders within the legal order of the time. 

Diodorus Siculus, writing about 60 B.C., uses the word in connection with 
events of 304 B.C.: 

[Amyntas] . . . suddenly confronted some pirates [peiratais] who had been sent out by 
Demetrias . . . the Rhodians took the ships with . . . Timocles, the chief pirate 
[archipeirates]. 29 

The usage of Livy, writing in Latin 29 B.C. -14 A.D., is similar. In 
describing events of 190 B.C., he refers to Nicander, whom he calls a pirate 
chief (archipirata), fighting with five ships as an ally of Rome. 30 In referring to 
the "war" of 68-67 B.C. by which Pompey the Great cleared the Eastern 



6 The Law of Piracy 

Mediterranean of Cilician commerce-raiding communities, 31 Livy not only 
refers to the struggle as "war" and describes it as if it were legally indeed a 
"war" at Roman law, but he refers to its ending by a negotiated surrender 
under which the "pirates" agreed to conform to more settled ways: 

Gnaeus Pompeius was ordered by a law passed by the popular assembly to pursue the 
pirates, who had cut off the traffic in grain. Within forty days he had cleared them from 
all the seas. He brought the war [belloque] against them to an end in Cilicia, received the 
surrender of the pirates and gave them land and cities. 32 

Finally, the Greek Plutarch, writing in about 100 A.D., paints such a clear 
picture of the "pirates" to which Livy referred in his brief synopsis of the 
"war" of Pompey to end their control of commerce in the Eastern 
Mediterranean, that it seems worth setting out in some detail. Throughout 
this translation, wherever the word "pirate" is used, the word "peirato" or 
one of its derivatives is used in the original Greek, 

The power of the pirates [peiratiki] had its seat in Cilicia [in Asia Minor, where they 
flourished during the wars of Rome against Mithridates [88-85, 83-81 , 74 B.C.] . . . until 
they no longer attacked navigators only, but also laid waste islands and maritime cities. 
And presently men whose wealth gave them power, and whose lineage was illustrious, 
and those who laid claim to superior intelligence, began to embark on piratical [peiratike] 
craft and share their enterprises, feeling that the occupation brought them a certain 
reputation and distinction . . . Their flutes and stringed instruments and drinking bouts 
along every coast, their seizures o( persons in high command, and their ransoming of 
captured cities, were a disgrace to the Roman supremacy [hegemonias]. 33 

To complete the picture of political societies conforming to the archaic 
Eastern Mediterranean pattern, Plutarch mentions the unique religious 
worship of the "pirates," whose rites centered on the town of Olympus in 
southern Asia Minor. 34 This combination of settled communities, religious 
rites, musical tradition, and the conception of the "pirates" that what they 
did was entirely proper, is what brought them into conflict with Rome. It is 
hard to see how they were considered outlaws or violators of any law other 
than the Roman conception of hegemony; a conception obviously not shared 
by non-Romans at that time, 35 and possibly not by many Romans of the 
pre-Augustan age that Plutarch was writing about almost a century after the 
reign of Augustus. On the other hand, Plutarch seems to have accepted the 
idea that such political societies, no matter how conforming to a traditional 
pattern, were an anachronism beyond the orderly system within which Rome 
had become accustomed to operate. The word "peirato" and its derivatives 
seems to be applied to traditional Eastern Mediterranean societies operating 
in ways that had been accepted as legitimate for at least a millenium. But the 
conception of Roman order, the idea that Roman hegemony was a matter of 
right, of law, had begun to make the continued existence of "pirate" 
communities unacceptable even if no justification for distinguishing those 
"pirate" communities from their less assertive neighbors could be found 



Origins 7 

directly in Roman or general international law as it was applied between 
Rome and other political communities of the Eastern Mediterranean. 

The procedures for the "war against the Pirates" adopted by the Roman 
Senate were extraordinary and reflect these legal doubts as to the precise 
status of the Roman hegemony and its legal basis. A law was passed by the 
Republic's Senate in 68 B.C. under which Pompey the Great was 
commissioned to subdue them not as a naval commander (the word "admiral" 
had not yet been invented, but the Loeb Classical Library's translator of 
Plutarch uses it here) but as a king deriving his sovereign powers from the 
Roman donation, thus opposing the "pirates' ' sovereignty with Roman 
sovereignty and making of the piratical society something like rebels. 
Plutarch makes it clear that this procedure was shocking: Pompey was 
commissioned by the Roman Senate to take the seas away from the "pirates 
[peiraton]" by giving him "not an admiralty, but an out-and-out monarchy and 
irresponsible [sic: "unbridled" might be a better translation] power over all 
men." 36 His authority was decreed to extend to land areas within 400 furlongs 
of the sea, thus to include the entire territory of the Aegean Islands, Crete and 
the Dodecanese and enough of the land of Asia Minor to include all their 
villages and Olympus, the "pirates' " religious center. 

Plutarch's description of the course of the war, and the negotiation for 
peace, seems to confirm this impression, that Rome treated the "pirates" not 
as outlaws but as enemies to be met in war and defeated. After dispersing the 
"pirates' " fleet, 

Some of the pirate bands [peiratorion] that were still roving at large begged for mercy, and 
since he [Pompey] treated them humanely, and after seizing their ships and persons did 
them no further harm, the rest became hopeful of mercy too, and . . . betook themselves 
to Pompey with their wives and children, and surrendered to him. All these he spared, 
and it was chiefly by their aid that he tracked down, seized, and punished those who 
were still lurking in concealment because conscious of unpardonable crimes. 37 

But the most numerous and powerful had bestowed their families and treasures and 
useless folk in forts and strong citadels near the Taurus mountains, while they 
themselves manned their ships and awaited Pompey 's attack near the promontory of 
Coracesium in Cilicia; here they were defeated in a battle and then besieged. At last, 
however, they . . . surrendered themselves, together with their cities [poleis] and islands 
of which they were in control . . . The men themselves, who were more than 20,000 in 
number, he [Pompey] did not once think of putting to death . . . [but] determined to 
transfer the men from the sea to land ... to till the ground. Some of them, therefore, 
were received and incorporated into the small and half-deserted cities of Cilicia ... To 
most of them, however, he gave as a residence Dyme in Achaea, which was then bereft 
of men and had much good land. 38 

Pompey 's monarchical position under the commission issued by the Roman 
Senate received something of a comeuppance shortly after, when Metellus, 
another Roman general, was with rather less mercy wiping out Cilician 
"pirate" villages in Crete. Since all of Crete lay within 400 furlongs of the sea 



8 The Law of Piracy 

Pompey apparently regarded this as an encroachment on his authority and 
sent one of his lieutenants, Lucius Octavius, to join with the "pirates" 
fighting against Metellus. Metellus won, "captured the pirates [peiratas] and 
punished them, and then sent Octavius away . . ." 39 There is no further 
reference to Pompey 's commission in this context. 

It seems clear that the word "pirate" was used by Plutarch to classify 
communities with which Pompey felt it was appropriate not only to go to war 
and conclude a peace treaty, but even to send military assistance to, as to an 
ally, when they accepted the Senate's ordinance subjecting them to the law of 
Roman "hegemony." 

On the other hand, it appears that there was a change in Roman concepts 
underway. To label a group "pirates" was not merely to classify their way of 
life within a legal order as we still use the word "Viking" to evoke a way of 
life legitimate within the harsh legal order of the middle ages. By the time 
Plutarch wrote, there was an implication of impropriety to that way of life. It 
had nothing to do with political motivation or criminality even under the law 
of Rome as applied in the Empire or allied areas. It dealt instead with the place 
of an antiquated way of life in a new commercial and political order that 
could not countenance interference with trade in the Mediterranean Sea. It 
was not bound to "piratical" acts on the "high seas," but to a conception of 
"piratical" villages forming a society [poleis] on land which refused to accept 
Roman supremacy. Relations with the "pirates" were relations of war, not of 
policing the internal or imperial Roman law; the results of Roman victory 
were the normal results of a victorious war at that time and in that place. 40 

"War" to the Roman jurists was not merely a condition of fact with people 
of one village or religious worship killing or enslaving people of another 
village or divine descent. War was regarded as a legal status even if no active 
fighting was occurring, and since victory or defeat in war had such enormous 
consequences for the belligerents and their families, reflecting the vitality of 
the vivifying force given by the tribe's or community's "God" or totemiclife 
source to some eponymous ancestor or founder, the ceremonies involved in 
the creation of that status were essentially religious. The religious element of 
the status of war was not a mere prayer for victory, but reflected much deeper 
concerns for the continuance of the race. Virgil's epic poem, Aeneid, telling 
the mythology surrounding the founding of the Roman tradition in Italy by 
Aeneas, a son of the defeated King Priam fleeing from the sack of Troy, is 
unmistakably, in this sense, a religious work. 

The interplay between religion and the secular law between "nations" or 
"races" or god-protected communities and tribes, is evident from the 
narration of the great literary (but not always accurate) historian Livy, who 
grew to manhood during the days of Julius Caesar, and wrote his history of 
Rome with access to sacred documents during the early days of the reign of 
Augustus. He details from the oldest treaty in the holy archives (c. 670 B.C.) 



Origins 9 

the treaty-making procedures of Roman tradition, setting out some of the 
formulas of words and symbolic acts, involving a freshly plucked holy plant, 
the sacrifice of a pig, and metrical ritual (which in part, alas, he fails to record 
as "not worth the trouble of quoting"). Through these rituals the titulary 
gods on both sides (in this case the Romans and the Albans) were called upon 
separately to witness the commitment of the current holders of the life of each 
god's own community to the sanctity of the pledge. 41 In this particular 
incident, as reported by Livy, the "war" between the Romans and Albans was 
put into the hands of three representatives from each side, chosen for their 
martial vigor and thus presumably reflecting the vigor of the holy life of each 
community as well as its mere secular martial prowess. The Romans won in a 
close contest, only one champion for each side surviving, and Horatius for 
Rome ultimately killing his Alban antagonist as the two armies stood by and 
watched. The two sides then buried their dead and Alba accepted Roman rule 
submitting their entire treasure and lives to the mercy of the Roman god 
represented by the Roman political organization. 42 

Livy also details the ceremony followed by the Romans even into his own 
time when "war" was to be begun. In Livy's version, the ceremony for a 
formal declaration of war was adopted from the religious rites of the ancient 
Roman tribe of the Aequicolae and taken over by priests (fetials) representing 
the entire Roman community. It is worth repeating in its entirety for an 
understanding of the importance of the ceremony and the significance of 
Cicero's argument in Livy's own time 43 that "war" against "pirates" could be 
begun without it: 

When the envoy arrives at the frontier of the state from which satisfaction is sought, he 
covers his head with a woolen cap and says: Hear me, Jupiter! 'Hear me, land of 
So-and-so! Hear me, O righteousness! I am the accredited spokesman of the Roman 
people. I come as their envoy in the name of justice and religion, and ask credence for my 
words.' The particular demands follow and the envoy, calling Jupiter to witness, 
proceeds: 'If my demand for the restitution of those men or those goods be contrary to 
religion and justice, then never let me be a citizen of my country.' [Presumably so that 
the results of impiety will not be visited on the entire community.] The formula, with 
only minor changes, is repeated when the envoy crosses the frontier, to the first man he 
subsequently meets, when he passes through the gate of the town, and when he enters the 
public square. If his demand is refused, after thirty-three days . . . war is declared in the 
following form: 'Hear, Jupiter; hear Janus Quirinus; hear, all ye gods in heaven, on 
earth, and under the earth: I call you to witness that the people of So-and-so are unjust 
and refuse reparation . . .' The envoy then returns to Rome for consultation. The 
formula in which the king asked the opinion of the elders was approximately this: Of the 
goods, or suits, or causes, concerning which the representative of the Roman people has 
made demands of the representative of . . . [So-and-so], which goods or suits or causes 
they have failed to restore or settle, or satisfy . . .: speak, what think you?' The person 
thus first addressed replied: 'I hold that those things be sought by means of just and 
righteous war. Thus I give my vote and my consent.' The same question was put to the 
others in rotation, and if a majority voted in favour, war was agreed upon. The fetial 
thereupon proceeded to the enemy frontier carrying a spear with a head either of iron or 



10 The Law of Piracy 

hardened wood, and in the presence of not less than three men of military age made the 
following proclamation: 'Whereas the peoples of [So-and-so] . . . have committed acts 
and offences against the Roman people, and whereas the Roman people have 
commanded that there be war with [them], and the Senate of the Roman people has 
ordained, consented, and voted that there be war with [them]: I therefore, and the 
Roman people hereby declare and make war on [them].' The formal declaration made, 
the spear was thrown across the frontier. 44 

These forms, or at least their underlying concepts, were employed against not 
only the South Italian peoples with whom the Romans shared a similar 
culture, but also against the North Italian Gauls 45 and presumably everybody 
else with whom it was religiously conceived that a struggle on earth reflected 
competing demands on a divine source of life symbolized by tribal or 
community gods. 46 

The most commonly cited authority for the original Roman legal 
conception of "piracy" adopted as the source for modern European views of 
international law on the subject is Marcus Tullius Cicero. Cicero, an active 
lawyer and politican contemporary with Julius Caesar, killed apparently by 
order of Marc Antony in 43 B.C. in the aftermath of the murder of Julius, 47 has 
been cited inappropriately often, 48 but did in fact mention "pirates [pirata]" in 
one passage that evidences the changing legal conceptions of the generation 
that gave Pompey the legal power to subdue them by simply asserting a 
superior legal power over the territory and seas in which their outmoded 
culture survived. In that passage he merely denies any legal obligation to keep 
an oath to "pirates" on the ground that by being the enemies [hostes] of all 
communities, they are not subject to the law of the universal society that 
makes oaths binding between different communities. 49 There are many 
reasons for regarding this statement as not indicating any considered legal 
opinion. Hugo Grotius himself, the great Dutch scholar and jurist o£ 
international law of the first half of the 17th century, criticized this passage on 
the ground that the observance of an oath is owed to God, not to the person 
receiving the benefit of the oath. 50 Other factors not usually considered by 
those citing this passage of Cicero as evidence that "pirates" in his day were 
common criminals 51 include the fact that the passage appears in a work on 
moral duties, not law; as Cicero himself noted, the two do not always 
coincide. 52 Moreover, bearing in mind Cicero's political situation in 44 B.C. 
when this was written, and the episode in Julius Caesar's life involving the 
same Cilician "pirates," 53 and the peculiar legal authority given to Cicero's 
sometimes friend Pompey coupled with Pompey 's use of that authority 
against Metellus and the fact that Pompey was by now dead and his twenty- 
five year old treaty with the "pirates" could be discarded without personally 
insulting him, and some notion of the complexity of Cicero's thinking can be 
appreciated. Indeed, the "pirates" that had been suppressed by Pompey in 67 
B.C. had revived by the time Cicero was writing this, and Marc Antony was 
believed to have mobilized them against Brutus and Cassius. Cicero's 



Origins 11 

condemnation of the "pirates" seems thus less a statement of a legal opinion 
than a slap at his enemy, Antony. 54 

Perhaps the best evidence of the Roman jurists' actual conception of 
"piracy" lies in the collection of undated opinions appearing in Justinian's 
Digest of 534 A.D. 55 There appears to be in fact only one passage in the Digest 
in which the word "pirata" or its derivatives appears. In the section on the law 
of property dealing with the devolution of property rights in case of a 
wrongful taking, the opinion of Paulus (c. 230 A.D.) is given: "Persons who 
have been captured by pirates or robbers remain [legally] free." 56 

Two other opinions have been so often cited by so many scholars as 
applying to "pirates" that it seems important to set them out here, even 
though by failing to use the word "pirata" or any of its derivatives they seem 
to demonstrate the opposite of the lesson for which they so often are cited. 
Ulpian (d. 223 A.D.) wrote: 

Enemies are those against whom the Roman people have publicly declared war, or who 
themselves have declared war against the Roman people; others are called robbers or 
brigands. Therefore, anyone who is captured by robbers, does not become their slave, 
nor has any need of the right of postliminium. He, however, who has been taken by the 
enemy, for instance, by the Germans or Parthians, becomes their slave, and recovers his 
former condition by right of postliminium} 1 

And Pomponius (c. 130 A.D.): 

Those are enemies who declare war against us, or against whom we publicly declare 
war; others are robbers or brigands. 58 

The concept of property rights needing reassessment after a legal capture, 
and that in some circumstances captives would become free and property 
would revert to its former owner on the conclusion of a war or on recapture, 
was an important one. 59 It becomes much more important for purposes of this 
study later when the European-based international law of naval prize makes 
it significant that the captor be classified as a person able to change legal title 
or not. It was by reading the word "capti" in the passage ascribed to Paulus, to 
apply to goods and not merely to persons, and by classifying "pirates" as 
covered by Ulpian and Pomponius as if they were brigands [latrones] or 
robbers [praedones], that this legal conclusion was reached. But that analysis 
belongs to a later chapter. 60 

One other implication of these passages seems significant. By attaching the 
word "hostes [enemies]" to those against whom legal war [bellum] was waged, 
and refusing to attach the word to police action against brigands and robbers 
[latrones et praedones], an entirely different light is shed on the phrase "common 
enemies of all mankind [hostes humani generis]" 61 as a paraphrase of its original, 
Ciceronian, meaning. If this analysis is correct, and Cicero was speaking as 
the technical lawyer later scholars have assumed in drawing their implications 
from this reference to "pirates," then what he really seems to have meant was 
that "pirates," are not robbers or brigands but legal enemies with the sole 



12 The Law of Piracy 

exception regarding promises to them that Grotius rightly criticises as 
illogical and which is incorrect as history. 

It may be concluded that the fundamental Greek and Roman conception of 
"piracy" distinguished between robbers, who were criminals at Roman law, 
and communities called "piratical" which were political societies of the 
Eastern Mediterranean, pursuing an economic and political course which 
accepted the legitimacy of seizing the goods and persons of strangers without 
the religious and formal ceremonies the Romans felt were legally and 
religiously necessary to begin a war. Nonetheless, the Romans treated them as 
capable of going to "war" — indeed as in a permanent state of "war" with all 
people except those with whom they had concluded an alliance. There is some 
evidence that the Romans refused to extend the technical law of postliminium 
to them, perhaps on the ground that since they never ceased to be at war, 
there was no opportunity to determine the title to captured goods and no need 
to recognize title in those deriving rights from belligerent capture; the goods 
remained subject to recapture by anybody, and the rights of postliminium 
would be applicable against the recaptor, just as in war goods recaptured 
before the end of hostilities reverted to their original owner subject only to 
payment of costs attributable directly to the recapturing action. 62 The legal 
rationalization found by the Roman Senate for suppressing the communities 
of "pirates" was not an asserted Roman right to police the seas (although 
Plutarch seems to have thought that rationale would have been better than the 
one actually used by the Senate), but the quite different assertion of a Roman 
right to territorial as well as maritime jurisdiction in the Eastern Mediter- 
ranean. To examine the full implications of this popular Roman view on the 
course of Roman, and, indeed, world history, is far beyond the limits of this 
study. For present purposes it seems enough to point out that "piracy" to the 
Romans was a descriptive noun for the practices of a particular landbased 
Eastern Mediterranean people whose views of law and intercommunity 
relations appear to have reflected a millenium-long tradition that had become 
an obstacle to Roman trade and inconsistent with Roman views of the world 
order under Roman hegemony. The word did not imply criminality under any 
legal system, Roman or law of nations. It was applied to a fully organized 
society with families and a particular religious order that seems to have been 
not shockingly different from the social organization and religious orders of 
many other peoples of that time and place. 

It is not beyond conjecture that something of this pattern was in the mind of 
Sir T.S. Raffles when he called "piratical" some of the Malay sultanates with 
which he had to deal in 1811. 63 

None of this is meant to imply that non-/?o/*s-connected marauding at sea, 
what today might (or might not) be called "piracy" as a result of later legal 
developments, was permissable at Roman internal law, Roman imperial law 
relating to hegemonial rights, if any, or international law as perceived by 



Origins 13 

Roman statesmen. But those acts were called something else, and to analyze 
the full range of legal results that flowed from using those other labels would 
involve a discussion beyond the limits of this study. To Europeans of later 
times whose education included familiarity with Greek and Latin writings in 
which the words "peirato" and "pirata" or their derivatives were used, some 
hint of the earlier meaning remained despite later legal uses of the word in 
forms contemporary with the later Europeans in special legal contexts. And 
that classical meaning did not carry the implication of criminality or violation 
of general international law that other meanings carried; it justified a kind of 
political action, perhaps, and also perhaps had some legal implication in 
general international law particularly as it related to the laws of war and 
postliminium. But these are factors better discussed later on. 

The Reorganization of the Renaissance 

"Piracy" Enters Vernacular English as "Privateering. " For a thousand years 
after Justinian the word "pirate" appears to have remained buried in the 
Greek and Latin texts familiar to learned monks but not considered 
significant to soldiers and statesmen. Norse raiders of the 9th to 11th centuries 
A.D. following a career that seems in many ways analogous to that of the 
"pirates" of the time of Cicero and Pompey were not usually called "pirates" 
in English or Latin in contemporary documents, but were called by the names 
they gave themselves, "Danes" or "Vikings." Ranulf Higdon (or Higden) 
wrote a general history of the world in Latin in the first half of the 14th 
century, referred to by a Greek abbreviation for its long title as the 
Polychronicon, that received some popularity for a century or so after its first 
production in manuscript. In it he drew the obvious analogy, calling the 
Vikings "Dani piratae. "John de Trevisa, a don at Oxford 1362-1379, translated 
Higdon into his native Middle English, translating the word "piratae" as "see 
theves [sea thieves]." The earliest use of the word "pirate" in English found 
by the compilers of the Oxford English Dictionary is in the second quarter of 
the 15th century. 64 That early usage seems to have no legal connotation. 

Meantime, in the Mediterranean Sea area, the old Greek and Roman usages 
seem to have survived. Merchant ships that passed near enough to fishing or 
small agricultural villages of the Mediterranean to be safely attacked by the 
inhabitants of those communities were, from time to time, attacked. The 
dangers of trade and travel during the rise of Venice, the Crusades, the 
establishment of the Ottoman Empire and the dominance of Suleiman the 
Magnificent in 16th century Turkey and the Eastern Mediterranean gener- 
ally, and the establishment of stable Muslim rule in the maghrebi towns of 
Algiers, Salee (Rabat), Tripoli and Tunis did not evoke images of "piracy " as 
a violation of any law. 



14 The Law of Piracy 

Later writers have used the word "piracy," with its modern legal and 
romantic connotations, in wholly misleading ways. As with later references 
to "piracy" attributed to classical authors, the most eminent modern writers 
have used the word to refer to a host of activities in the Mediterranean of the 
16th and 17th centuries that may or may not have been considered "piracy," 
or even wrongful under any legal system. The situation is summed up 
admirably by Fernand Braudel, a French historian who himself uses the word 
"piraterie" in the most confusingly vague and unhistorical ways: 

In the 16th century [as in Homeric times] the sea was filled with pirates, and pirates 
perhaps even more cruel than those of earlier days. Commerce raiding [la course] takes a 
mask, disguises itself as semi-official warfare, with letters of marque . . . 

I have repeatedly said that piracy was the child of the Mediterranean. True enough, but 
historians have often lost sight of the generality of the practice while focusing their 
attention and reproofs only on the Barbary corsairs. Their fate, which was grand, 
overshadows the rest. Everything else is deformed. That which is called "piracy " when 
done by the Barbary corsairs is called heroic, pure crusading spirit when done by the 
Knights of Malta, and the equally ferocious Knights of St. Stephen, based at Pisa under 
the protection of Cosimo dei Medici. 65 

Thus, while the picture painted by Braudel 66 is brilliantly clear and 
imaginative, the fact that he uses the word "pirate" to include licensed 
warfare at sea should not be forgotten. He describes the Mediterranean of the 
16th century as featuring: "Sea-pirates . . . aided and abetted by powerful 
towns and cities. Pirates on land, bandits, received regular backing from 
nobles." 67 But the picture is actually, legally, one of lively and dangerous 
commerce and conflicting claims to authority that might be called an 
authority to tax nearby shipping lanes with capture of the vessel, confiscation 
of its cargo, and the enslavement of the crew the penalty for tax evasion. 
Another legal basis for "piracy" as the word is used by Braudel was the 
medieval law of war: "One of the most profitable ventures of Christian 
pirates in the Levant became the search of Venetian, Ragusan or Marseillais 
vessels for Jewish merchandise, . . . likening it to contraband, a convenient 
pretext for the arbitrary confiscation of goods." 68 The "Christian pirates" 
referred to here seem to have been the Knights of Malta, a crusading Order 
asserting sovereign rights to govern land and to participate in lawful war. 69 
For theft to be profitable, "stolen" goods must have a market. Where the 
market is in the control of a "government," a person or body to whom is 
conceded the legal power to change title to property, and a "taking" is 
authorized by the proprietor of that market, it is difficult to conceive of 
"stealing" as distinct from "lawful capture "or "taxation. "By the end of the 
sixteenth century such markets were flourishing in Valetta (Malta), Leghorn 
(Livorno, Italy) and Algiers. Their legal basis was thus the law of the 
Christian Knights of Malta, Cosimo de' Medici, and the Muslim Governor 
(under Turkish control) of Algiers. 70 



Origins 15 

For the pattern of commerce to be profitable the goods must continue to 
flow; the taxation or belligerent interdiction (or robbery) must not be so 
burdensome as to drive trade away; even risk-sharing through insurance must be 
managed in such a way that the risk does not become so great as to be 
uninsurable. 71 Examining this economic reality and the undeniable vitality of 
Mediterranean trade in the period 1580-1648, when captures at sea were most 
vigorously condemned by European writers as intolerable, even if legal, it can 
be conjectured that the forcible exchange of goods and slave-taking was in fact a 
tolerable part of the economic system of the Mediterranean at that period. 
Indeed, even a century later, the risk of being taken as a slave in the waters near 
Algiers and Morocco was significant, and the fate of the slave once taken was 
not always as grim as might be assumed by a 20th century reader. 72 

England was already a major sea power by the time the Spanish Armada 
was defeated in 1588, soon to dominate large areas of the sea and express 
through the application of force its sentiments as to the proper order of 
commerce and private property. 

John Chamberlain, whose letters written 1597 to 1626 constitute a major 
source of insight into the trade and politics of that period in England, 
apparently uses the word "piracies" as a synonym for "privateering under 
license" in a letter to Dudley Carleton dated 31 January 1599: "Upon the 
Duke of Florence's embargo and complaint of our piracies, here is order upon 
pain of death that no prizes be taken in the Levant seas." 73 A similar usage 
appears thirteen years later when Chamberlain refers to unlicensed takings as 
a matter of state authority bearing no apparent relationship to abstract 
notions of morality or international law: "Many of our pirates are come home 
upon their pardon for life and goods, but the greater part stand still aloof in 
Ireland, because they are not offered the same conditions, but only life . . . " 74 
The same usage was applied to Algiers and Tunis, whose licensed or 
unlicensed prize-takers were called "pirates" while routine treaty negotia- 
tions were conducted with the rulers of those places. 

Sir Thomas Roe had taken great pains and thought he had done a chef d'oeuvre in 
concluding a truce or peace for our merchants with the pirates of Algiers and Tunis. But 
he is in danger to be disavowed and all this labor lost (howsoever it comes about) and we 
left to the mercy of those miscreants who have already seven or eight hundred of our 
able mariners, among whom many gunners and men of best service at sea, who by this 
treaty should have been delivered. 75 

About the beginning of the 17th century "pirates" began to take the place 
of "Spaniards" as the villains in English popular ballads. A ballad published in 
1609 condemning John Ward and a Dutchman named Simon Danseker for 
their villainies under Barbary license illustrates the changing mood: 

Gallants, you must understand, 

Captain Ward of England, 

A pyrate and a rover on the sea, 



16 The Law of Piracy 

late a simple fisherman 

In the merry town of Feversham, 

Grows famous in the world now every day. 

Men of his own country 

He still abuses vilely; 

Some back to back are cast into the waves; 

Some are hewn in pieces small, 

Some are shot against a wall; 

A slender number of their lives he saves. 

At Tunis in Barbary 

Now he buildeth stately 

A gallant palace and a royal place, 

Decked with delights most trim, 

Fitter for a prince than him, 

To which at last will prove to his disgrace. 

There is not any Kingdom, 

In Turkey or in Christendom 

But by these pyrates [Ward and Danseker] have 

received loss; 
Merchant-men of every land 
Do daily in great danger stand, 
And fear do much the ocean main to cross 

But their cursed villanies, 

And their bloody pyracies, 

Are chiefly bent against our Christian friends; 

Some Christians so delight in evils 

That they become the sons of divels, 

And for the same have many shameful ends. 

London's Elizabeth 

Of late these rovers taken hath, 

A ship well laden with rich merchandize; 

The nimble Pearl and Charity, 

All ships of gallant bravery, 

Are by these pyrates made a lawful prize. 

The ballad ends with three more verses describing a quarrel between Ward 
and Danseker, and seeing in their separation, Ward to stay near Tunis and 
Danseker to hover near "Argier" (Algiers), the hand of God which will lead 
to their overthrow. 76 

The realities reflected on this ballad led to a diplomatic expedition to 
Algiers in 1621 under Sir Robert Mansell, which failed, 77 and an unsuccessful 
attempt by Parliament to ransom 1500 Christian captives in 1624. Popular 
indignation over the plight of the captives is reflected in a frankly polemical 
ballad of that year: 



Origins 17 

Not many moones have from their silver bowes 

Shot light through all the world, since those sworne foes 

To God and all good men . . . [sic] that hell-borne crew 

Of Pirates (to whome there's no villanies new), 

Those halfe-Turkes and halfe Christians, who now ride 

Like sea-gods (on rough billows in their pride), 

Those renegadoes, who (their Christ denying) 

Are worse than Turkes . . . 78 

In 1637, 3-400 souls were taken from Salee by the English ship Rainborow, 
apparently peacefully. 79 

The English conception of when the word "pirate" was appropriate in 
international relations at this period had not come to be stably reflected in a 
specific legal context. 80 As is apparent from the last quoted line of the ballad 
of Ward and Danseker, at least in the popular mind there was no distinction 
between privateering and "piracy;" a "pyrate" could make "lawful prize" of 
a captured vessel. It is possible, although not entirely clear, that the word was 
a pejorative used for privateers of any nationality who captured English 
vessels. The word appears to have slipped so quickly into the general 
pejorative vocabulary that whatever legal precision it might have derived 
from classical sources eroded by the late 16th century. 

Some clues as to the evolving meaning of the word, and some insight into 
the pattern of governance and trade that gave rise to the changes in meaning, 
are implicit in contemporary documents relating to the East India Company's 
business in Southeast Asia. There are mentions, for example, of English and 
Dutch ships in 1622, during one of the very brief periods of cooperation 
between the merchants of the two nations, keeping company "for fear of 
pirates" near Java, but it is unclear precisely who or where the "pirates" 
were. 81 Similarly there is mention in December 1623 in a communication 
from the Council at Batavia to the English merchants at Jambi (in Sumatra) 
that it is deemed "dangerous to send one ship for England alone, because of 
the abundance of pirates lurking in all places," 82 and a few days later the same 
Council referred to the need for homeward-bound ships to be prepared 
"against the invasion of that cursed crew of pirates." 83 Again, it is unclear 
precisely who or where the "pirates" were, but they were probably not the 
Dutch; there is a reference in instructions given to an English trading voyage 
to Bantam (in Java) by the "President and Council of Defence" in Batavia on 
16 August 1623 to the need to defend against an assault by the Dutch "as from 
pirates," 84 apparently distinguishing between the two threats. 

King James I, convinced that the East India Company was withholding 
from the Admiralty its tenth share of prize money taken under license by the 
Company as "reprizals" (apparently against Portugal), is reported to have 
called the Company itself "pirates." 85 In the Court Minutes of the East India 
Company the same transaction is explained: 



18 The Law of Piracy 

. . . Mr. Governor replied that upon receipt of the release promised for the time past and 
the warrant and direction for the future they were ready to pay the money. His 
Majesty's answer was that this was to give them leave to be pirates; the answer was that 
the Company delighted neither in blood nor rapine, and therefore humbly besought his 
Majesty would be a means that peace might be between the English and Portugals ... or 
else that his Majesty would explain in what cases the English might defend themselves 
by offending others if there were cause. 86 

It seems likely that two different conceptions of "piracy " were involved, one 
asserted by the Company referred to "blood" and "rapine" and seems to 
relate to English criminal law as it might be applied generically to robbery 
within the jurisdiction of the Admiral; the other implied by King James I 
related to any unlicensed taking. It is tempting in this to see a Stuart King 
seeking a legal basis for classifying as criminals those who merely failed to 
submit to total centralized control over their activities, and a private 
Company seeking to restrict royal control to what was permitted by 
Parliament in its criminal statutes. But, as shall be seen below, the dispute 
probably reflects differing conceptions of law on a much deeper level. 

It does seem to be concluded by all who have examined the facts of 
Mediterranean commerce in the 16th and 17th centuries that licensed 
"privateering" of many European powers, including England, made trade 
not only in the Mediterranean but also in the North Atlantic and elsewhere, 
hazardous for all traders of any nationality, and that the four Barbary 
communities of Tunis, Tripoli, Algiers and Salee joined in this practice in the 
early 17th century. 87 The word "piracy" was used increasingly around the 
turn of the 17th century to refer to privateering, possibly by analogy to the 
classical "pirates" of Cilicia in the Eastern Mediterranean, but the word was 
assuming a more specific meaning related to unlicensed "privateering" as the 
century progressed. 

"Piracy" Enters the Legal Vocabulary as "Outlawry," The professional 
international law scholars of the 16th and 17th century left in their writings 
evidence of this evolution of meaning, and how the word "piracy" acquired 
technical international legal meanings reflecting the popular culture. 

The North Italian Pierino Belli, publishing his major work on military 
subjects and war in 1563, rests on the medieval post-glossator Baldus Ubaldus 
(1327-1400) as authority for interpreting Cicero's and Plutarch's writings to 
mean that while war should not be begun without a declaration, "it is 
customary to make an exception in the case of pirates [piratae], since they are 
both technically and in fact already at war; for people whose hand is against 
every man should expect a like return from all men, and it should be 
permissible for any one to attack them." 88 He distinguishes "pirates," 
towards whom the laws of war apply, from persons whom the Pope or Holy 
Roman Emperor have branded as public enemies; public enemies, but not 



Origins 19 

"pirates," are termed "outlaws" whom even persons without soldiers' 
licenses may kill. 89 But Belli makes a major departure from precedent when 
repeating Cicero's condemnation of Marc Antony's agreement with the 
Cilician "pirates" in 44 B.C. 90 as if applicable in all contexts and disregarding 
any evidence that treaties with the Cilician "pirates" had in fact been 
concluded and observed by Pompey as well as by Marc Antony. Indeed, the 
inconsistency between the two passages in Belli, one affirming the 
applicability of the law of war to relations with "pirates" and the other 
asserting a rule of law that would make the termination of that war 
impossible except by the complete annihilation of the "pirates," seems to 
reflect some confusion of thought. 

Balthasar de Ayala, a native of Antwerp (now part of Belgium, then part of 
the provinces of the Habsburg monarchy ruled from Spain) writing in 1581 
carried the confusion a step further. By reading the passages of Justinian's Digest 
relating to captivity and postliminium as if all references to "brigands" 
("latrones") applied equally to "pirates," he actually denied the status of lawful 
enemy ("hostes") to pirates in apparent disregard of all the ancient writings: 

For the same reason, the laws of war and of captivity and of postliminy, which apply to 
enemies, do not apply to rebels, any more than they apply to pirates [piratis] and robbers 
(these not being included in the term "enemy"). Our meaning is that these persons 
themselves can not proceed under the laws of war and so, e.g., they do not acquire the 
ownership of what they capture, this only being admitted in the case of enemies; but all 
the modes of stress known to the laws of war may be employed against them, even more 
than in the case of enemies, for the rebel and the robber merit severer reprobation than 
an enemy who is carrying on a regular and just war and their condition ought not to be 
better than his. 91 

Nor is it clear why he denied the status of lawful enemy to rebels, although 
legally the case for criminality was easier to make regarding "rebels" than 
"pirates" in 1581, since rebellion was obviously a violation of the law of the 
monarch against whom it was aimed, and was committed by people within 
the "allegiance," of that monarch, while "pirates" were beyond the reach of 
municipal law under normal feudal concepts. The possibility that rebels 
might achieve an independent status under international law before the 
former monarch accepts that negation of his monarchy's internal law, and 
thus become best viewed as entitled to the protection international law gives 
to lawful belligerents even if their precise status is doubtful, was not 
considered by Ayala. Perhaps his views were influenced by loyalty to the 
Habsburg monarchy during the violent days of the rise of the Dutch 
Republic. 92 

The Legal Order and Outlawry 

Positivist Theory: Law as a Support for Policy. The first writer o{ 
lasting eminence to convert the confusions of the time to legal principle, to 
argue that the label "pirate" carries with it unmistakably the meaning of 



20 The Law of Piracy 

outlawry and that what "pirates" do is forbidden by international law, was 
Alberico Gentili. Born in Italy in 1552, but forced by the Inquisition to leave 
when his father, and apparently he himself, converted to the Protestant 
religion in the 1570s, Gentili settled in England in 1580 and was appointed to a 
teaching post at the University of Oxford in 1581. He was made Regius 
Professor of Civil Law there in 1587 and published the first volume of his 
Commentaries on the Law of War in 1588. Two other volumes followed in 1589, 
and all three were reissued together in 1598. He appeared with Royal 
permission as the advocate for Spain in several cases before the Royal Council 
Chamber in London, dying in 1608 full of honors. 93 

After defining the legal state of war ("Bellum est") as a "just [lawful?] and 
public contest of arms [publicorum armorum iusta contentio]," 94 and asserting on 
the basis of quotations from Justinian's Digest that only Princes have the legal 
power to resort to war, 95 Gentili devotes an entire chapter to demonstrating 
by legal logic that "pirates" cannot be public enemies; cannot wage "war." 96 
"A state of war cannot exist with pirates and robbers, in the opinion of 
Pomponius and Ulpian [cumpiratis & latrunculis helium non est. vt ita Pomponius, & 
Ulpianus definierunt]." 97 He goes on: "Pirates are the common enemies of all 
mankind, and therefore Cicero says that the laws of war cannot apply to 
them." 98 But the passage Gentili immediately quotes from Cicero does not 
mention "pirata" or any of its derivatives or the law of war; it is a passage 
relating only to promises given to "praedones." 99 

It is, of course, possible to quote the entire chapter, but it is not the function 
of this study to subject to critical analysis the influential scholarship of others 
except as necessary to trace the evolution and legal meaning of the concept of 
"piracy" in modern international law. Thus, without further examples, it is 
possible to conclude that Gentili in 1588 took an argumentative position, 
supported with an advocate's brief, that "piracy" was not a matter of 
permanent war with communities pursuing violent tax collections at sea or 
basing part of their economy on booty seized from their neighbors. "Piracy" 
to Gentili was apparently any taking of foreign life or property not 
authorized by a sovereign, synonymous with brigandage or robbery on land, 
i.e., that his conception of the criminal law implications of the words praedones 
and latrones or latrunculi in Roman law, which he does not analyze, applied 
equally to "pirates" without analysis. 

It seems clear that the license of an established sovereign was the key to his 
thinking. The chapter concludes with a famous example illustrating precisely 
that: 

But what are we to think about those Frenchmen who were captured by the Spaniards in 
the last war with Portugal and were not treated as lawful enemies: They were treated as 
pirates [piratae], since they served Antonio, who had been driven from the whole 
kingdom and never recognized as king by the Spaniards. But history itself proves that 
they were not pirates [piratas] and I say this because of no argument derived from the 
number and quality of the men and ships, but from the letters of their king which they 



Origins 21 

exhibited; and it was that king whom they served, not Antonio, although this was 
especially for the interest of Antonio: a consideration, however, which did not affect 
their status. 100 

The implications of Gentili's position were great. If it were generally 
accepted, whatever the weaknesses of the appeal to classical writings in 
support of it, that all takings were in some sense "criminal" unless authorized 
by a person whose legal power to issue such an authorization were 
acknowledged, no degree of political organization or goal could make a 
"rebel" into a lawful combatant or require the application of the laws of war 
to the struggle against the rebel army. A tool of enormous power was placed 
in the hands of "sovereigns." The political struggle to unify France and to 
engorge the royal power of the Stuart kings of England would be helped. 
Moreover, each "sovereign" would seem to be accorded the legal power, by 
"recognizing" anybody's legal status needed to license privateers or naval 
commanders (or withholding that "recognition"), to determine what legal 
regime would be applied to any struggle between the "sovereign" and an 
enemy of uncertain status. The Barbary states could be rendered "piratical" 
by simply withholding recognition of his governmental position from a new 
Dey or "recognizing" a rival, thus depriving the one not liked of the power to 
issue the Turkish equivalent of letters of marque and reprisal. Gentili's 
approach was clearly attractive to him as an advocate for Spain in England 
1605-1608. 101 

Many of the cases in which Gentili was concerned involved "postliminy" 
in its renaissance form, the determination of title to goods and status of 
persons taken by a foreign sovereign, his agent, or a "privateer" (or "pirate") 
possibly acting in excess of his foreign license. While it is not necessary for 
purposes of this study to set out the complexities of the Roman law of 
postliminium, a few words as to its growing importance in renaissance 
Europe seem needed. 

Some Technicalities: Property Law and Privateering. "Postliminium" 
was the Roman law word of art to denote that branch of the law which dealt 
with rights of property during wartime. Questions involved primarily the 
status of persons (slave or free) captured in war and brought to the territory of 
a neutral before the war ended; would it be unneutral of the third country to 
deny the property right of the captor in his slave? If so, could the captor sell 
the slave and pass title to a neutral? And if that neutral sold the slave to a buyer 
from his original country, what then; would the captive soldier become a 
slave in his own country? The analogy to captured goods and vessels seems 
clear. 

By late medieval times, the legal status of war, retaining some of its 
religious background, no longer applied to many lawful private takings. It 
was, in fact, in an effort to avoid bringing about a state of war between 
princes that letters of marque and reprisal were issued to private persons 



22 The Law of Piracy 

authorizing them to recapture from foreigners goods that had been 
wrongfully taken by those foreigners. There were no judicial proceedings 
prior to the issuance of the letters, thus there could be, and presumably were, 
serious questions about the "wrongfulness" of the original taking and the 
propriety of the supposed "recapture." Moreover, it was rarely possible to 
assure that the goods "recaptured" were identical with the goods originally 
taken, and it was but a small step to issue letters of marque and reprisal 
("licentia marcandi" in 1295) for the taking not necessarily of the original goods, 
but of any goods up to the value of the original goods; and not necessarily 
from the original taker, but from his fellow-citizen. 102 

Little help in determining the precise meaning and origin of the system 
exists in etymology. "Reprisal" comes from Latin via French and means 
"re-taking." It is possible to speculate that the original sense in law involved 
simply an authority to recapture goods wrongfully taken by another. 
"Marque" seems to have an obscure origin and some relationship to the 
technical old Provengal law of pledge. It has no English usage other than in 
"Letters of Marque" and almost always the words "marque and reprisal" 
appear together. On the other hand, as noted above, the phrase "licentia 
marcandi, ' ' clearly meaning a letter authorizing a taking in the sense of ' 'letters 
of marque and reprisal," appears in a document of 1295, and the phrase 
"marquandi sue gagiandi" in an English legal document of 1293, predating by 
some sixty years the earliest reference to "/a lei de Mark &de represailles" found 
by the compilers of the Oxford English Dictionary in an English statute of 
1354. The word "marquandi" seems to relate not to seizures and pledges but to 
merchantability; the legal power to pass title to goods. 103 

These shifts in the system of private "reprisal" and equivalent capture for 
sale to satisfy the original claim in money terms by the end of the 16th century 
had failed of their purpose to avoid war between the sovereigns over private 
claims. The issuance of such letters had begun to be regarded in Northern 
Europe as necessarily involving the centralizing monarchies in the attack on 
foreigners whom it was the legal duty of their own sovereigns to protect. 
Thus, the issuance of letters of marque and reprisal was becoming itself a 
belligerent act, justifiable only by the law of war. The old forms persisted, 
and it was apparently felt not necessary that the war be declared before the 
letters were issued, while it was felt to be necessary to apply the laws of war 
to determine the lawfulness of the capture. Thus the license, the letters, held 
by the captor were felt to be subject to examination and the legal status of the 
foreign "sovereign" issuing an equivalent license could be called into 
question. The question would arise whenever goods or a ship purchased in 
Algiers or Tunis arrived in England or Holland, for example, and some 
former owner identified it as his. This was often done in the case of a ship; 
Admiralty proceedings to determine rights in a vessel became the typical 
forum for hearing questions of this sort. Thus, while "prize courts" in any 



Origins 23 

country 104 might deal with wartime captures, and the Royal Council 
Chamber in England dealt with various claims involving the dignity of the 
Crown in the early 17th century, ordinary Admiralty courts in England dealt 
with a variety of cases arising out of peacetime capture under letters of 
marque and reprisal. 

The proceedings in Admiralty, Royal Chamber and Prize were proceedings 
before national courts; i.e., only the sovereign could authorize an adjudication 
of property rights within his domain, so all the courts there, whatever their 
title or form, derived from him their authority to adjudicate title to property. 
But the substantive law they applied was necessarily a law that had to be 
acceptable both at home and, if the new title were to be of any use to the 
winner of the case, abroad. Thus rationales or, probably more accurately, 
justifications based on legal logic and precedent for the determinations of the 
tribunal, had to be found in terms that would seem persuasive to the tribunals 
erected by foreign sovereigns dealing with the same or similar cases. This 
pattern of logic and the appeal to precedent based on incidents not tied to 
local circumstances and legislation might be best described as the application 
of "international law" to the case, or of a special branch of municipal law, or 
even as a sort of conflict of laws situation where the municipal law refers the 
tribunal to a foreign system of laws (in this case "international law") which in 
turn refers the questions of title to a foreign law (perhaps the law of Tunis in 
the case of a Tunisian capture followed by legal proceedings equivalent to 
Prize or Admiralty or Royal Chamber proceedings in Tunis). Which set of 
concepts was used would depend on the complexity of the mind of the analyst 
and the consistency of the particular legal model with other legal principles 
important to the tribunal. 

Gentili, as the Advocate of Spanish interests in England at the highest legal 
levels, apparently phrased his pleadings, when he could, as pleadings on behalf 
of English merchants deriving title through Spanish claimants, and seems 
frequently to have omitted the Spanish middle step. Thus, where he argued on 
behalf of English merchants against other English merchants, he was actually 
doing his proper jobof representing Spanish interests. Where he could, he also 
described the interests of the other side as foreign, even where it seems likely 
that they were as deeply (or as shallowly) rooted in England as his own side's 
were. 

In the first cases in his book of pleadings, Gentili argued that the Roman 
writers and precedents created a law of "postliminy" that should be applied 
in the Royal Chamber to permit lawful title to pass to a captor only as a result 
of lawful capture during time of war, and then only after the capture is 
perfected by the captive people, goods or vessel being brought to the territory 
controlled by the capturing person's sovereign and the capture declared good 
there. He noted, as if merely in passing, that "To Pirates and wild beasts no 
territory offers safety [Piratis, & feris territorium nullum praebet securitateni]' 



24 The Law of Piracy 

because "Pirates are the enemies of all men [Piratae sunt hostes omnium]" 105 and 
cannot perfect their captures any more than wild beasts can. In a case 
involving a purchase by English merchants directly from "pirates" in a 
market under the supervision of the treasury officials of the "King of 
Barbary, " Gentili argued that the Roman law forbidding pirates to alter title 
(he did not distinguish between title to persons and title to goods) applied in 
Barbary as it applied in Turkey, the territorial descendant of the Eastern 
Roman Empire of which Justinian was Emperor. That law, he argued, 
nullified the purported legal effects of the English purchase even though there 
was some official Barbary connection with the sale. As an additional reason in 
policy for adopting the legal pattern he proposed, he argued that a contrary 
result would give to "pirates" a "very convenient place, which is quite close 
to the Spanish lines of trade and occupied by English merchants, where they 
may distribute their booty among their confederates. Does this make for 
trade?" 106 

On the other side, when attempting to support title derived by purchase in 
Tunis from "pirates" against the Venetian original owners, he argued that 
there are exceptions to the absolute rules. Under one such exception at 
Roman law the payer of a ransom to pirates could hold the persons ransomed 
until repaid the amount of the ransom; rights of possession might thus be 
passed by pirates even if full rights of property could not. 107 It is not clear just 
who the "pirates" were (they were asserted to be English) or what they did or 
if they had any letters from a foreign prince. Since they were not parties to the 
case, and Gentili 's argument did not rest on asserting the legitimacy of their 
acts (which might have been conformable to international law but forbidden 
by English municipal law under some special definition of "piracy") 108 these 
issues were not presented. 

Finally, in a case involving English possessors of "pirate ' ' property deriving 
their title through purchase at Tunis, with Gentili arguing for the English 
possessors, he was forced to depart still further from his theoretical position 
that the Barbary states were "piratical" when they licensed takings without 
going to war. Admitting that his former argument 109 went the other way, he 
tried to distinguish the cases on the ground that the involvement of the 
Turkish Treasury ("fiscus") in the first case was merely a matter of form 
while in this case the involvement was direct. But major stress is placed on a 
more solid policy ground: That those who are safe under the law of the place 
of the transaction must be safe in their rights in England also. This is a basic 
principle of conflict of laws and necessary for any country involved in 
international trade. It thus indicates a limit to the theoretical discretion of 
lawyers and statesmen to attach legal labels to suit the particular interest of 
the moment. Gentili went even further: "Our countrymen have their trade 
with Tunis, Algeria, and many another state taken from them by this claim of 
the Venetians that those states are nothing but piratical retreats and that there 



Origins 25 

is none in them but pirates and that the very magistrates in them are pirates 
too." 110 This frankly political argument for attaching the label "state" to the 
Barbary organizations, and "government" to their officials, is consistent 
with Gentili's basic idea: That legal labels are attached not on the basis of 
facts, but on the basis of their legal and political results by a policy choice. 

Thus Gentili's "recognition" approach had its limits. Reality and the needs 
of commerce exposed it as not a rule for judgment by a third party or scholar, 
but as a tool of advocacy attractive primarily to flexible-minded lawyers and 
statesmen seeking a justification for actions that might not stand moral 
scrutiny. 

It was not even clear that the Gentili approach would help "legitimate" 
monarchs dispose of rebels as "pirates. " Not only was its legal basis shaky, but 
it was not clear politically that treating a dynastic claimant as a "pirate" chief 
would have any significant effect in the world of affairs. It was not clear, as it 
is not clear today, that the legal results of loss in war are less harsh on the 
vanquished than defeat as "pirates." Hanging for treason, for political 
convenience or influence, or for crime differ as far as the victim is concerned 
only to the degree that some sense of dignity might attach more easily to the 
political prisoner than to the common criminal. Yet, it has been common in all 
ages that political prisoners suffer far more than common criminals in times of 
stress. And if the alternative to fighting on in a hopeless cause was to be death 
on a criminal's scaffold, it is not clear that calling "piracy " what others might 
call "privateering licensed by an unrecognized sovereign" would always 
shorten the struggle or make victory easier for the established sovereign. 
Thus the particular example does not seem to support the principle Gentili 
argued to underlie it. 

There are other implications to Gentili's approach. His approach to "law" 
seems dominated by the ephemora of policy. If "piracy" is criminal, by what 
law? Apparently, by giving to each sovereign the power by "recognition" or 
"non-recognition" to classify belligerent behavior as "piracy" when engaged 
in by licensees of a foreign government or of a political movement whose 
status could be denied, the privateers or soldiers of that government or 
movement could be subjected not to international law, but to the domestic 
("municipal," to use the usual word of art) criminal law of the "non- 
recognizing" sovereign. In theory, Gentili's approach, based on an advocate's 
twist to Roman municipal law, reached the same position as was condemned 
by Plutarch when considering the authority the Senate had given Pompey to 
suppress the Cilician "pirates" in 68 B.C. Now any sovereign could extend 
his municipal law to the high seas, and possibly even to foreign land, by 
authorizing his Admiral or General or other delegate to wipe out the 
"pirates" there. Clearly, this broad authority would not survive the politics 
of Europe, where the extension of one state's municipal law to the land 
claimed by another would result either in a system of competing empires and 



26 The Law of Piracy 

"war" unmodified by the humanitarian and chivalrous law of war that was 
generally acknowledged in Europe as necessary, or in the acknowledgment 
that a European sovereign of sufficient political power and a claim to 
authority along traditional lines could not be properly denied "recognition" 
as such. But outside of Europe, where the competition for empire among 
European sovereigns and their subjects was becoming intense, the claims of 
non-European rulers to the legal authority of a European sovereign could be 
denied without those implications. And if the struggle grew too difficult to 
manage or the non-European too strong to ignore as a political actor or too 
adept at finding European allies who would "recognize" his legal capacity to 
license soldiers and privateers, the European power that had overextended 
itself by abusing the legal tools Gentili would place in its control could simply 
withdraw for a while to reconsider the politics and law of its position. 111 

The vistas opened by Gentili 's discovery in the ancient Roman law relating 
to latrones and praedones of a pattern of rules that could justify the most extreme 
action against non-European political societies, and against internal forces 
resisting the move towards centralized control in the monarchies and 
bureaucracies of European expansion, were immense and very attractive to 
the rising merchant classes. 

Naturalist Theory: Law as a Moral Order Governing Policy. Gentili's 
approach was not universally adopted by scholars. Hugo Grotius (Huigh de 
Groot) was a Dutch prodigy whose reformulation of the basic conceptions of 
the law that governs relations among states was so influential that he became 
known as the father of modern international law. Born in 1583, he began 
University studies at Leyden eleven years later, received his Doctorate at 
fifteen from the University of Orleans while accompanying Johan van 
Oldenbarnevelt on a diplomatic mission, and was greeted on that occasion by 
King Henri IV as "The miracle of Holland." 112 The first edition of his 
masterwork, On the Law of War and Peace, was published in France in 1625 and 
incorporates writings dating back to 1604. Later editions with his own 
corrections in them appeared in 1631, 1632, 1642 and 1646, the last being 
published posthumously. 113 His active life included government service in 
many capacities, including Ambassador from Queen Christina of Sweden to 
France in 1634-1645, 114 and the 1646 edition of On the Law of War and Peace 
incorporates not only vast classical scholarship and literary precision, but 
distills the experience of an active statesman deeply involved in the political 
struggles of his time. 

Without mentioning Gentili by name, Grotius took issue with him on at 
least two vital points: (1) His classical scholarship, which Grotius corrected in 
large part; and (2) his emphasis on the power of an established sovereign 
through non-recognition to place an active political community within the 
legal classification "pirate. " Most importantly, by describing some character- 
istics of "pirates," Grotius implied a view of the legal order which permits an 



Origins 27 

objective classification; he indirectly created a definition of "pirate" 
quite different from the Gentili definition and equally influential in the 
long run. 

As to the disagreements, Grotius addressed the same preliminary question 
that Gentili addressed as to whether "war" was a fitting legal classification 
for all armed contentions. Quoting Pomponius and Ulpian among others, 
Grotius came to no sweeping conclusions regarding "pirates" on the basis of 
their opinions. Instead, he turned to a more direct analysis of the character- 
istics of a society before it should be denominated "piratical," asserting that 
the label properly fits only those who are banded together for wrongdoing 
but does not include societies formed for other reasons even if also 
committing illegal acts. 115 

Moreover, a commonwealth or state to Grotius did not immediately cease 
to be such if it commited an illegality, even as a body; and a gathering of 
pirates and brigands was not a state, even if they did perhaps mutually 
maintain a sort of equality. The reason, according to Grotius, is that pirates 
and brigands are banded together for wrongdoing; the members of a state, 
even if at times they are not free from crime, nevertheless have been united 
for the enjoyment of rights, and they do render justice to foreigners. 116 The 
problem comes in practice when trying to distinguish a "piratical" 
community from a wrong-doing state. Comparing Ulpian 's conclusions 
about captives not losing their liberty if taken by brigands 117 with the 
willingness of Ulpian to allow lawful capture to German marauding tribes on 
land as described in the works of Caesar and Tacitus, 118 and comparing the 
celebration of a Roman "Triumph" at the end of the "war" with Illyrian 
indiscriminate sea-borne marauders with the refusal of Rome to order a 
Triumph to end Pompey's acknowledged war with the Cilician "pirates," 119 
Grotius simply reiterated his view that these legally vital distinctions which, 
after all, determine rights to potentially large amounts of captured property 120 
and the liberty of real people, rest solely on the criminal purpose of the 
marauders' association. 121 

This basis for discriminating between "piratical" and non-piratical 
marauding communities in the classical literature seems insupportable. There 
is no evidence that the "peiraton" of Plutarch and Polybius, with their villages, 
religious observances, alliances, etc., were banded together for the purpose of 
plundering their neighbors any more than were the Germanic tribes or 
Illyrians. Moreover, Grotius himself saw that the distinction could not 
survive close legal scrutiny or the need politically to take full account of 
marauding societies no matter what the purpose of their original union, once 
their activities and degree of organization and their political power passed a 
certain point. He argued that a "transformation [mutatio]" may take place 
with regard to individual chieftains of brigand bands [praedonum ducibus] who 
become "lawful chiefs [justi duces]" in some cases, 122 and also to whole 



28 The Law of Piracy 

communities by mere evolution. 123 But, instead of reconsidering his definition 
Grotius immediately passed on to other things. 124 

In short, Grotius's conception of when the word "pirate" would fit as a 
legal word of art seems to focus not on recognition or the derivation of 
authority from some acknowledged prince, but from facts directly: The word 
would fit robber bands on sea or land; it would not fit the Barbary states or 
other complete communities, whose primary purpose of association is lawful, 
i.e., defense, raising families, making war. The legal results that flow from 
attaching the word seem vague indeed, since Grotius would allow oaths and 
promises to "pirates" to be kept and legation to be maintained. The only 
really significant passage then is the one offhandedly expanding the Justinian 
Digest's rule regarding the impossibility of a piratical capture changing the 
personal status of the captive, to the very important area of general 
postliminium — the disposition after recovery of goods previously captured 
by pirates. 

Even in this last regard, postliminy, Grotius was not certain that its rules 
and exceptions had any application to his time. The expansion of organized 
political societies in peaceful contact with each other had, in his optimistic 
view, made the Roman law of postliminy obsolete: A lawful capture in war 
followed by prize proceedings would legally change title to captured goods; 
an unlawful capture in war or the lack of a legal proceeding similar to prize 
court proceedings in which the various claimants to the goods would have an 
opportunity to dispute the lawfulness of the capture, the contraband nature of 
the goods and their actual ownership and destination, would not change the 
title, and the loser could reclaim his goods if he could in fact recover them. A 
lawful capture outside of war he regarded as impossible. 

But what, then, about seizures by the Barbary corsairs? Were those 
"states" in a permanent status of war with the states of Europe? Could their 
licensees' seizures and their magistrates' legal procedures confer title on the 
corsairs and thus on the European merchants who eventually bought the 
goods? Or were they "pirates" who, by the ancient Roman law, could not get 
title to goods however elaborate their legal proceedings? Or were they 
"states" not at war whose depredations could give them some rights of 
possession, but with regard to whom the law of postliminy should be revived 
to clarify precisely what those rights were and against whom they could be 
asserted? Grotius reported without comment a judgment of the highest court 
in Paris delivered while he was writing (presumably shortly before 1625): 

The decision held that goods which had belonged to French citizens, and had been 
captured by the Algerians, a people accustomed in their maritime depredations to attack 
all others, had changed ownership by the law of war, and therefore, when recaptured by 
others, became the property of those who had recovered them. 125 

Despite Grotius's seeming to doubt the legal strength or practical wisdom of 
the Paris decision, and bearing in mind that his merely recording it added 



Origins 29 

greatly to its weight in those days when there were no formal court reports 
and a necessarily different concept of stare decisis, (i.e., the bindingness of 
common law decisions on later courts) from the current concept, the 
inclusion of this judgment in his book may indicate Grotius's own uneasiness 
with the classifications that his logic and moral perception of the legal order 
had led him to. Of course, if there were no moral content to the law but only 
form, the decision was clearly correct: Algiers met the criteria of statehood 
by Grotius's own definitions, and the procedures of legal title transfer by the 
law of Algiers were not questioned. Moreover, presumably both the former 
owner and the owner deriving title through the sale in Algiers were innocent 
of the taking and certainty in the law seems always to have been more 
important for practical men of affairs and merchants than its conformity to an 
abstract ideal of morality; a decision against Algiers would have had to come 
in the form of a decision against a merchant who presumably had his insurance 
or other 17th century risk-sharing arrangement to fall back on. It is only the 
moral feeling that such takings seemed more like robbery than like war or tax 
enforcement that seemed bothersome, and that sense of wrong came from an 
analogy to the municipal law of robbery that seems misplaced in an age when 
privateering was the normal way to recover the loss due to the acts of 
foreigners abroad. Perhaps there was an undercurrent of yearning for 
Empire, the imposition of Dutch order on the world, or at least on the 
non-European part of it. Perhaps it was a deeper sense of order felt 
increasingly as the excitement of trade and travel combined with classical 
learning began to stir European scholars. But this is speculation. 

The practical diplomat's position expressed by implication throughout De 
Jure Belli ac Pads, that facts and the needs of politics and moral order dictate the 
legal classifications that must be attached to situations, contrasts strongly 
with Gentili's position that lawyers and politicians can apply the labels best 
suited to their legal and political needs by a simple exercise of will. Under 
Grotius's analysis, rebels at a fairly early stage, when their independent 
existence at least as a community capable of belligerency could be objectively 
determined, must be treated as a legal entity exercising belligerent rights 
under international law. That position, of course, suited very well the 
position of the Netherlands rebelling from Spain. Gentili, the Spanish 
advocate in London's Royal Council Chamber sitting in Admiralty insisted 
that only a license from a recognized sovereign could authorize the exercise 
of soldiers' or privateers' privileges, thus that legitimate sovereigns 
attempting to suppress rebellion could treat the rebels as criminals, even 
"pirates," with whatever legal results could be drawn from that classifica- 
tion, without raising any questions of international law. 

Under the analyses of both Grotius and Gentili, robber bands not 
purporting to have any license could be treated as "pirates," but the legal 
result of this was not to treat "pirates" directly as Roman law "latrones" or 



30 The Law of Piracy 

"praedones." It was to justify attaching the label "pirate" to those robber 
bands that would have been called "latrones" or "praedones" but not "pirata," 
before the great reanalysis of the late 16th century. Whatever the Roman law 
treatment of "latrones" and "praedones" the effect of this was to refer the 
treatment of those now called "pirates" back to the municipal law systems of 
the labeling states, presumably by unconscious analogy to the primacy of 
Roman municipal criminal law in questions involving the disposition of those 
whom the Roman law called "latrones" or "praedones." 

There is another aspect to the Grotian view of the international society of 
the time that must be mentioned. Despite Grotius's reputation as an able 
advocate for seas open to all, 126 in De Jure Belli ac Pads the more extreme 
arguments, under which Portuguese monopoly treaties with the Sultans of the 
Malay Archipelago and their enforcement against third states were 
denominated criminal, 127 were dropped and Grotius concluded that: 

[Sovereignty over a part of the sea is acquired in the same way as sovereignty 
elsewhere, that is, . . . through the instrumentality of persons and of territory. It is 
gained through the instrumentality of persons if, for example, a fleet, which is an army 
afloat, is stationed at some point of the sea; by means of territory, insofar as those who 
sail over the part of the sea along the coast may be constrained from the land no less than 
if they should be upon the land itself. 128 

Thus the basis for the extension of municipal criminal law to the activities o£ 
foreigners on at least parts of the sea was laid in theory. The theory was that 
of effective occupation — the power in fact of a sovereign to dominate a part 
of the sea and apply his law there as he did on land; a power that could be 
exercised not by theoretical claims, but by the use of military force. 
Argumentative support for this position was found in various Greek and 
Roman precedents, 129 although the example of the Roman Senate conferring 
monarchical powers on Pompey in 68 B.C. is not cited. Thus, as Gentili had 
found a legal rationale for the extension of municipal law to foreign territory, 
so Grotius, reversing his earlier position as the sea power of The Netherlands 
increased, found a rationale for the extension of municipal law by any state 
with a warship to that part of the sea within the military control of that 
warship. 

Some Implications. It may thus be seen that the word "piracy" entered 
modern English usage in a vernacular sense to cover almost any interference 
with property rights, whether licensed or not, and was applied as a pejorative 
with political implications but no clear legal meaning. The word in its Latin 
form entered the vocabulary of lawyers concerned with public order in the 
late 16th and early 17th century as a synonym for action, whether or not 
related to property rights, which was conceived to be unauthorized within 
the legal system posited by the lawyers using the term. Thus, it could be 
applied to "rebels" violating the constitutional order of a single country; 
persons within the allegiance of one monarch acting against that monarch 



Origins 31 

under the purported authority of another monarch; foreign privateers whose 
property rights were being denied; or even the officials of a political society 
denied legal status as a person subject to the "international legal order," as 
defined by each ruler in Christendom for himself, with the legal effect that 
the officials of that "non-state" would be regarded in the denying state as 
lacking the legal power to change property rights or carry on a legal "war" or 
prescribe law in any territory. In its most expansive meanings, no implication 
of criminality existed; it was not a crime by any law to be an official of an 
unrecognized political society. On the other hand, an individual acting 
against the criminal law, or the law regarding "treason" or "mutiny," of a 
state could not exculpate himself from the operation of that law by claiming a 
license to act issued by an unrecognized "government." A link between 
individual criminality and the international legal order was thus put in place, 
as the existence of political groups outside the legal order, "outlaw" groups, 
meant that action taken pursuant to the "outlaw's" authority was, as far as an 
official within the legal order was concerned, unauthorized and, if that action 
violated a rule of law of the enforcing official, and occurred within his 
perception of his jurisdiction to enforce the rule, could be punished regardless 
of the link to an "outlaw" organization. 

To follow the evolution of this conception further, it is necessary not only 
to understand the fundamental difference in the approaches to defining the 
legal order taken by "naturalists" and "positivists," but to know that as 
governmental control tightened with the rise of a secular legal order in 
Europe based on effective control and ambition, the outer limits of national 
assertions of jurisdiction to prescribe rules of property and criminal behavior 
were explored. Some of those limits have already been mentioned, as it was 
pointed out that legal words that did not reflect reality may have governed 
some statesmen's actions, but that legal policy as well as political action lost 
persuasiveness and effectiveness as it departed from reality as perceived by 
those whose actions were supposed to be influenced by it. As the vice of 
"naturalism" is to attribute legal force to the merely moral commands that 
the lawyer or statesman would like to be law but which is denied by others, so 
the vice of "positivism" is to treat as if real the model built by mere words to 
reflect what the lawyer or statesman would like to be real rather than what 
actually is. Where "naturalism" imputes consensus where there may be none, 
"positivism" can lead to solipsism — an emphasis on the arbitrary aspects of 
consent as the basis of the law-making process, and a retreat to "de jure" 
dreams of power. 

In any case, in addition to its usage in the international legal order, the 
word "piracy" in the 16th and early 17th century was acquiring a meaning in 
the municipal legal orders of the countries of Europe whose views of law 
were to dominate sophisticated thought for the next four hundred years. It is 
impossible to understand the evolution of the conceptions of "piracy" in 



32 The Law of Piracy 

international law without first understanding not only some rudiments of the 
conception of the international legal order and some legal theory, but also it is 
necessary to consider the municipal law usage, particularly in connection 
with municipal criminal law and its jurisdiction to apply to the acts of 
foreigners abroad, and municipal property law and the need to mesh that law 
with foreign property law so that private property crossing national 
boundaries remain secure in the possession of the foreign "owner." We now 
turn to that. 

English Municipal Law and Piracy in the Renaissance 

Jurisdiction and Substance; Admiralty and Common Law. It is beyond the 
powers of a sole scholar in reasonable time to analyze the municipal laws that 
might relate to the conception of "piracy" of all countries, or even all 
European countries, or even a few major European countries. It is fortunately 
possible to trace the municipal law of England 130 as it relates to "piracy" from 
the time it began to emerge from the obscurity of time and the vagaries of 
medieval records, through the great formative days of Sir Edward Coke 
(1552-1634) and Sir William Scott (Lord Stowell) (1745-1836) to modern 
times. As in the examination of classical sources, it is necessary to begin with a 
word of caution. The word "pirate" does not appear with a precise meaning 
in English legal literature until the 16th century, and attempts to trace the law 
regarding "piracy " back beyond that time all seem to assume that other legal 
words carried the identical meaning. 131 The assumption may be correct, but it 
is not convincingly argued in any known source despite the extraordinary 
volume of writing devoted to the history of the English law relating to 
"piracy. " Typical of the confusion, and worth mentioning only because of the 
eminence and scholarly reputations earned by the people involved, is the 
elaborate history of the English and international laws of "piracy" by Chief 
Justice Cockburn in Regina v. Keyn 132 and the compilations of documents by 
Reginald G. Marsden. 133 In the first, Lord Cockburn refers 134 in some detail to 
two cases of Common Law indictment for "piracy" in the time of Kings 
Edward II and Edward III. 135 In fact the word does not seem to appear in any 
of his quotations. 136 Marsden, while reproducing several documents that use 
the word in the 14th century and even earlier, notes: 

As a legal term "piracy" belongs to a later date. The Latin word is common from the 
first, but it was not always used in an evil sense. In 1309 wines are stated to have been 
captured "morepiratico;" in 1353 " piratae et alii inimici nostri" are spoken of . . ., and in 1359 
one Robert Blake, who robbed a ship at sea, is called "pirata" . . . But in the twelfth 
century ships in the service of William II are spoken of as "piratae" — "jam mare munierat 
piratis . . .; Anglici vero piratae qui curam maris a rege susceperant . . .;" and in 1324 Edward II 
prepared for war "Admiralos etpiratas super mare constituendo" . . . Before the latter part of 
the 14th century robbery at sea seems to have been dealt with in the King's courts as one 
and the same crime as robbery on land; and so of murder and assault. The records do not, 



Origins 33 

to the present writer, appear to support the view insisted upon by some of the judges in 
Reg. v. Keyn . . . that piracy has from the first been recognized by the law of England as a 
crime distinct from robbery and murder on land. 137 

On the other hand, Marsden himself used the word "piracy" in headnotes 
to various documents in which neither the word nor any clear concept 
appears; his indexes use the word to refer to cases that seem to have nothing to 
do with the word or any clear concept of "piracy, "and in at least one place in 
his table of contents he refers to a document that seems irrelevant in both 
word and sense to anything related to "piracy" and for which he does not use 
the word in his own headnote. 138 Occasionally he uses the word to translate 
Latin documents in which the word "pirata" or its derivatives does not 
appear; since his own note quoted above indicates his awareness of how 
deceptive that can be, the practice is inexplicable. In these circumstances, and 
finding similar doubts and problems to attend reference to other deservedly 
reputable works, 139 it seems necessary to return once again to primary 
sources, so happily collected by Marsden, hoping only that the reprints 
purporting to set out original language are more accurate than the 
translations. 140 

There are at least three analytically distinct problems that must be seen 
clearly before it is possible to understand the growth of English law relating 
to "piracy" and its relationships to international law. First, there is the 
question of jurisdiction: Is there a court in England empowered by English 
law to consider the case? Second, there is the question of substance: Is the 
particular act complained of a violation of English law? Third, there is the 
question of the reach outside of England of the prescriptions of English law 
and the enforcement jurisdiction of English courts. Each of these problems 
contains within it a whole host of subsidiary questions and the answers to any 
one of them change the pattern in ways that effect the whole problem and, 
indeed, the perceptions of all three problems. Because the interplay of these 
three problems is so complex, and the implications of tracing any particular 
pattern of legal behavior in disregard of the entire picture are so destructive 
of coherence, a basically chronological approach will be taken. 

In the earliest documents, as noted above, the word "pirate" (the 
documents are in Latin, the word "pirata") and its derivatives are not used in 
any sense pertinent to this study. Indeed, Marsden's headnotes to documents 
of 1216 and 1228 relating to a ship "piratically captured" and "A pirate 
hanged" do not reflect either language or concept in the documents 
reproduced. In the first 141 King John directs his port bailiffs to find and deliver 
to its owners on presentation of proof of ownership a ship and goods alleged to 
have been diverted, and to hold for further action those in whose hands the 
ship and goods may be found. The case may involve maritime embezzlement 
and in any case seems a civil rather than a criminal matter with an 
undifferentiated legal power in the King to resolve both civil and criminal 



34 The Law of Piracy 

aspects of it. In the second, the criminal charge for which one Willelmus de 
Briggeho was hanged involved consorting with general evil-doers who 
robbed a ship off the port of Sandwich (". . . Willelmus de Briggeho, suspensus 
posteapro consensu malefactorum navis depredate ante Sandwicum . . . "). 142 Not only is 
the word "pirata" or its derivatives not used, but again the facts are so unclear 
as to make any conclusions doubtful. All the people involved might well have 
been English, the vessel robbed might have been English, the location seems 
to have been mentioned for the purpose of identifying the incident, rather 
than as significant to establish any court's or nation's jurisdiction, and the 
location is so closely linked with a bit of land clearly within the realm of 
England that it is impossible to say that any concept of extending that 
jurisdiction seaward was involved. 

The earliest reference to an international incident in the modern sense 
appears in a document of 1289. King Edward I by that document established a 
Commission to inquire into * 'certain trespasses [transgressiones]" committed by 
Englishmen against some Frenchmen and complained of by the King of 
France. The Commissioners were directed to "cause due restitution to be 
made of the goods." 143 

Apparently private recapture, self-help, was the normal remedy of seamen 
despoiled of their property in those rough times, and well into the next 
century, 144 but there is mention of letters of marque in documents of 1293 and 
1295 indicating at least a Royal attempt to get control over the activities of his 
mariners when foreign ships might become involved and protests from 
foreign princes could be expected. 145 In the latter case, the letter ("licentia 
marcandi") granted an English petitioner the legal right at the law of England 
to take back from Portuguese "sons of perdition" the value of goods seized by 
them under license of the King of Portugal, who is alleged to have got a tenth 
of the booty. It is noteworthy that the English license is not directed against 
the particular people who took the English goods, but against any subjects of 
the realm of Portugal. What seems to have been involved was not an attempt 
to get control of robbery at sea, but of private legal remedies; to limit the 
rights of English victims to the equivalent of restitution for injury done by a 
foreigner, and to avoid as far as possible committing the public forces and 
resources of the Crown to the petty struggle. 

It was about this time that the post of "Admiral" was established in 
England as a magnate authorized to oversee the issuance of letters of marque 
and reprisal and their due performance and ultimate cancellation. 146 

It is not clear what the source of substantive law was that the Admiral was 
supposed to apply. The Commissioners of 1289, responding to complaints by 
the King of France against English seamen, were directed to make the 
restitution "in accordance with the law and custom of our realm," 
England. 147 In 1361, a prior commission 148 to try the case in a Common Law 
court (the accused having been caught in England with their booty) was 



Origins 35 

revoked and replaced by a commission authorizing "our Admirals" to try the 
case "according to the maritime law. " 149 But the "maritime law" is not likely 
to have been conceived as a law foreign to England. The great Code of the 
Laws of Oleron, compiled in a small island within the feudal lands of Eleanor, 
Duchess of Guienne, the wife of Henry II and mother of Kings John and 
Richard I, had been promulgated by her for Guienne in the Gascon tongue, 
promulgated with revisions then in England by Richard and John, re-issued by 
Henry III in 1266, and confirmed by Edward III in 1329. 15 ° They were 
distinguished from the Common Law of England by the very fact of royal 
promulgation as a Code; the power of interpretation was given to the 
Admirals as beneficiaries of royal patronage rather than Common Law judges 
with their own traditions of independence and the legal power to develop 
custom, as distinct from statutory or decree law, in both criminal and civil 
matters. Presumably the merchants most directly concerned with the terms of 
maritime law preferred this system also, since their interests could more 
easily be pressed at the royal court or with a royal administrator, the Admiral, 
than with Common Law judges when a change in the law or its interpretation 
was sought in the interest of English sea-borne commerce. Thus, when a 
commission of 1374 directed the leading administrators of England's 
Southeastern coast to hear and determine various criminal matters arising at 
sea along the coasts, "supra mare per costeras," o£ Kent (the word "piracy" is not 
mentioned: The list of offenses included the Common Law and non-legal 
words "robberies, depredations, discords and slayings") 151 it seems significant 
that the law to be applied was "the law and custom of our realm of England 
and . . . the law of the sea. " 152 The implication is not that the law of the sea is 
different from the King's law in England, but that it is different from the other 
law of England, the Common Law which includes its own custom. The 
reference to the "law of the sea" pointedly omits any reference to custom. 
The word "pirate" enters the English legal vocabulary via Latin 
commissions in the 15th century. The first direct legal use of the word appears 
to have been in an order of Henry VI in 1443 directing the restitution to 
Englishmen of goods taken from them by "pirates." 153 The context is purely 
civil — a question of property rights, not of crimes, and the word seems to be 
used in a pejorative, not a technical, sense. Similarly, a Proclamation by 
Henry VII in 1490 mentions: 

divers and monyfold spoliations and robberies . . . uppon the se unto the said subgettis of 
the said most high and myghty princes [of England and various foreign places] ... as well 
by their enemyes as by other pirattis and robbers, which, as it is said, daily resorte into 
divers portes and places of this his realme of England, and ther be suffered to utter and 
sell their prises, spoiles, and pillages . . . 154 

This seems to classify the "pirates" with "enemies" as well as with 
"robbers," and classifies what might be lawful spoils with the booty of 
wrongful takings. Significantly, the Proclamation does not purport to apply 



36 The Law of Piracy 

the law of England or the "law of the sea" or "maritime law" to the first 
takers of the goods. To discharge the King's international obligations to his 
fellow princes it takes a strictly territorial approach, commanding that: 

[N]o manner of persons . . . from henssforth comfort, take no receyve, in any . . . places 
of this his realme any of the said mysdoers, ne any merchandisez or goodes by them 
spoiled or takyn . . . uppon payn of forfeiture of the same merchaundises ... or to the 
value thereof, for restitution to be made to the parties grevid, and uppon payn of 
imprisonment ... at the Kinges will. 155 

The command is directed at Englishmen and perhaps foreign merchants only 
when they are in England; punishment for the "enemies," "pirates" and 
"robbers" is not prescribed, but only for the receivers of their goods in 
England. 

The earliest reference to "pirates" in a context that seems to attach specific 
legal results to their activities seems to be a Latin letter of appointment by 
Henry VIII in 1511 to John Hopton, who was directed to: 

[S]eize and subdue all and singular such spoilers, pirates, exiles, and outlaws [praedones, 
pirates, exules, et bannitos] wheresoever they shall be seized, to destroy them and to bring 
all and singular of them, who are captured, into one of our ports, and to hand over and 
deliver them, when so brought in, to our commissioners . . , 156 

Whether or not this instruction was actually intended to apply to foreigners 
in foreign vessels, or only to Englishmen and persons of any allegiance in 
English vessels, is not clear. Nor is it clear how far from the coasts of England 
Hopton was expected to range; he appears to have confined his activities to 
areas within easy sail of English ports 157 and the more general language of the 
letter of appointment may never have been intended to reach farther. 
Moreover, the degree to which the commissioners mentioned in the letter had 
jurisdiction in derogation of Admiralty courts and Common Law courts, 
whether in fact there were Admiralty courts functioning throughout the 
period, are questions it is impossible to resolve without what appears 
excessive research. 158 

Admiralty Commissions and Common Law: The Statutes of 1535 and 1536, The 

first attempt to organize the administration of justice regarding maritime 
English offenses and have it apply in a regular way, through permanent 
tribunals instead of through ad hoc tribunals set up under ad hoc commissions of 
the King, was not until 1535. 159 The Preamble to that statute says: 

Where pirates, thieves, robbers and murders upon the sea, many times escape 
unpunished, because the trial of their offences hath heretofore been ordered before the 
admiral, or his lieutenant or commissary, after the course of the civil laws, 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 torture or 
pains) or else their offences be so plainly and directly proved by witnesses indifferent, 
such as saw their offences committed, which cannot be gotten but by chance at a few 
times, because such offenders commit their offences upon the sea . . . 160 



Origins 37 

To cure these legal problems, the statute provides that all "felonies, 
robberies, murders and manslaughters" should henceforth be tried by special 
Commissions using the forms of the Common Law, under which conviction 
and execution were easier. The word "pirates" or its derivatives is not used in 
the operative part of the text. 

Section IV of the statute of 1535 allows for an unlicensed taking at sea not to 
be considered criminal if only necessities of the voyage were taken, and a 
written promise to pay for them was given and redeemed within four months 
if the taking were "this side of the straits of Marroke" or 12 months if on the 
other side (in the Mediterranean). There is no mention of takings across the 
Atlantic or on the other side of the Straits of Magellan; but then Drake had 
not yet made his circumnavigation. The statute is silent as to the nationality of 
the taker or the victim, or the nationality of the vessels. Nor does it deal with 
the defense of vessels anywhere. It appears to envisage the arrest in the 
normal Common Law fashion of accused malefactors in England; it thus 
merely replaces the discretionary Admiralty courts, using Civil Law 
procedures, with tribunals (Commissions) to be appointed and to use 
Common Law procedures outside both Admiralty and Common Law systems 
in England without affecting the normal rules of jurisdiction. 

The statute of 1535 was superseded the following year by a nearly identical 
statute, 28 Hen. VIII c. 15 (1536). 161 The Preamble to the statute of 1535 
referred to "pirates, thieves, robbers and murders." The Preamble to the 
statute of 1536 refers to "traitours pirotes theves robbers murtherers and 
confederatours." Presumably, "traitours" and "confederatours" were added 
to the list to take account of evolving Common Law thought that wanted to 
classify "piracy" as an Admiralty term for breach of feudal relationships, 
equivalent to the master-servant bond in days when status seemed more 
important legally than contract ties. Under the laws of Oleron, the master of 
a vessel had some of the legal powers of a feudal superior over his crew. 162 
Thus, "traitours" and "confederatours" (i.e., conspirators, those who join 
together to commit a wrongful act) would relate to passengers and crew 
within the vessel, and seem to refer to what today would be called 
"mutineers." 163 Like the statute of 1535 the statute of 1536 drops the word 
"pirate" "pirotes"] in its substantive terms: 

All treasons felonyes robberies murders and confederacies, hereafter to be comytted in 
or uppon the see, or in any other haven ryve creke or place where the admyrall or 
admyralls have or pretende to have power auctorities or jurisdiction, shall be enquired 
harde determyned and judged in such shires and places in the realme as shall be lymytted 
by the Kynges Comission or Comissions to be directed for the same, in like fourme and 
condicioun as if any such offence or offences hadd been comytted or done in or uppon the 
lande; and such comissions shall be . . . directed to the admyrall [or his delegates] . . . and 
to iij or iiij such other substantiall persons as shall be named or appointed by the lorde 
chauncellor of Englande . . , 164 



38 The Law of Piracy 

The legal words of art did not include any reference to international law or 
Roman law or, indeed, any concept of "piracy" except in the nontechnical 
recitation of the preamble; instead the words of art of the English Common 
Law of crimes were used. It is in that context that the word "felonyes" makes 
sense; the distinction being drawn involved the technical English law of "high 
treason," "petit treason" and Common Law crime, as yet incompletely 
distinguished from tresspass, or tort actions. 165 

The extraterritorial reach of this legislation was no more clear than before. It 
was apparently restricted to the places in which the Admiral by the law of 
England had legal power, authority or jurisdiction. That apparently included 
vessels flying the English flag wherever they might be afloat, including foreign 
ports and the navigable waters of England. 166 But it was never clear whether it 
extended to foreign vessels on the high seas or on internal navigable waters of 
England which were within the Common Law courts' jurisdiction. The case o( 
Regina v. Keyn showed at great length that there was considerable doubt, 
ultimately resolved rightly or wrongly against the Admiral's pretentions, if he 
had any, that it extended to foreign vessels outside England's Common Law 
jurisdiction even within three miles of the English coast. 

The system remained fundamentally unaltered through the entire period of 
this study. 167 

In Rem Property Adjudications. The earliest technical legal usage of the word 
"pirate" in an English court reflects the Roman law origins of the "Civil 
Law" applied in those English courts not governed by the "Common Law" of 
England. 168 In 1553 John Clerke, "Proctor General" of the Admiralty court of 
England, referred to goods "left and deposited by Henry Strangwis, Peter 
Killigrew, Thomas Killigrew and Baptist Roane & others . . . pirates, robbers 
and malefactors [piratas predones et malefactores] . . . now being under arrest. " 169 
Apparently it was the goods that were arrested, not the "piratas predones et 
malefactores," who had fled. The goods were confiscated and the various 
claimants were given a chance before the Admiralty court in an in rem 
proceeding to prove their property rights. It is unclear whether the denial of 
property rights to those who had fled (presumably for fear of criminal 
prosecution in the Common Law courts or before Admiralty Commissions 
under the statute of Henry VIII) was a reflection of a legal conclusion that 
"pirates" could not possess property at English Common or Civil Law. It 
might equally well have been a mere incident of the Civil Law system of in rem 
proceedings under which those with claims to property must submit those 
claims for adjudication in the light of the claims of others, and failure to 
present a claim for whatever reason resulted in loss of the possible rights and 
carried no criminal law or other general implications. 

The notion that calling the possessor of a ship a "pirate" would deprive him 
of legal rights to the ship seemed very useful to Sir Julius Caesar, 170 who 



Origins 39 

applied the word to possible claimants in a series of widely different in rem 
cases. For example, in 1585 the Diana was arrested at the order of Caesar and 
condemned as a "pirate" ship to be sold for the benefit of the Admiral when 
her Master, a Frenchman named Killie, sailing under a French flag, did not 
appear. Killie was considered a "pirate" by Caesar even though it seems 
possible that he had a French commission, or letters of marque and reprisal, 
authorizing in the name of France his depredations against English ships. 171 
There was no criminal action involved. 

In another case in 1598, Caesar gave title to a prior owner against a 
purchaser who derived his claim to title from an Englishman "commonly, 
openly, publicly, and notoriously reputed to be a pirate [articulatis pro pirata 
communiter, polam, publice, et notorie reputatum fuisse et esse]" in the complete 
absence of criminal proceedings or other evidence as to the place of the taking 
or the circumstances surrounding it. 172 

In 1608 another Admiralty judge, Thomas Crompton, used the word in a 
similar way to deny title to James and John Powntis, purchasers "in foreign 
parts" of Venetian goods "captured ... by one John Ward, 173 and other 
pirates and sea rovers" and sold to them apparently via official channels in 
Algiers. The goods or their value were granted to the Venetian Ambassador 
for the merchants he represented. 174 This case seems to avoid the problem of a 
commission for Ward, or the possibility that his capture was a "lawful prize" 
or a confiscation for non-payment of Algerine transit tolls, by simply calling 
Ward a "pirate" and ignoring the probable subsequent involvement of the 
Algerine officials in a legal transaction to transfer title. There was no 
criminal proceeding or attempt at definition. 

While not pertinent to the definition of the word "piracy," it might be 
mentioned in this place that the use of that word to bring into play the idea 
that stolen goods should be returned to their previous owner because thieves 
by ancient principle cannot pass title they do not have, even to innocent 
purchasers, created special problems with regard to the use of the word. 
Without denying the superior title of the prior owner to the title a thief might 
assert merely by his possession of the goods, the needs of commerce required 
greater stability of title when dealing with a foreign seaman; a merchant had 
to be able to buy goods from one who might later turn out to have been a 
"pirate" (however defined), or a major legal impediment would limit 
international seaborne commerce. The solution to this problem appears to 
have been not only the easy acknowledgment of title transfers under Barbary 
states law for the benefit of corsairs (or "pirates"), but also the application in 
English law of the rule that: 

[I]f a Man commit Piracy upon the Subjects of another Prince or Republique (though in 
League with us) and brings the Goods into England, and sells them in a Market Overt; the 
same shall bind, and the Owners are for ever concluded, and if they should go about in 
the Admiralty to question the property, in order to restitution [sic], they will be 
prohibited. 175 



40 The Law of Piracy 

Englishmen's goods found in England were still to be returned to their English 
prior owner as a matter of statute law. 176 

A strange incident in 1615 demonstrates the vernacular use of the word by 
the highest officials of England to refer to an Admiralty in rem case in which 
the word "piracy" was not in fact used but the legal results were drawn 
without it. In 1615, Captain Newporte of the Centaur invited the Captain of 
the French ship L'Esperance to dinner off Cape Verde. Newporte then seized 
the French ship, whose owner turned out to be the politically influential 
Governor of Dieppe, Francois de Villiers Houdan. The English Admiralty 
court under Judge Daniel Dun decreed restitution of the vessel or its value to 
the French owner, ending a diplomatic crisis. There is no evidence of Captain 
Newporte 's authority, if any, for his action, nor is there any known record of 
a criminal proceeding growing out of the incident. But in the Privy Council 
Register for 11 July 1617 there is a reference to money held "for satisfaction of 
a sentence given in the Court of Admyraltie on the behalfe of Viliers 
Howden, a governor of Deipe, concerning a pyracie committed upon a shipp 
of his by one capten Newporte. " 177 Apparently, the word "pyracie" was used 
in a non-legal sense to mean something like "unauthorized taking," with an 
implication of crime; no clear legal sense seems to have been intended. The 
only legal action mentioned was the one for restitution. The word "sentence" 
does not seem to refer to any criminal court's action, but to the judgment of 
the Admiralty court in an in rem proceeding. It is in this context that it is 
possible to interpret the remark of King James I in 1624 178 referring to the East 
India Company as "pirates" merely for failing to pay him what he felt was his 
share of their lawful captures. 

Outlawry, Crime and Licenses. From the mid 16th to the mid 17th centuries the 
word "pirate" and its derivatives was used more and more frequently in 
official English documents not related to property-rights cases before the 
Admiralty courts, and had acquired a meaning as a vague basis for ever- 
expanding English assertions of jurisdiction. In 1569 Queen Elizabeth had by 
proclamation denounced "all pyrats and rovers upon the seas" and declared 
them "to be out of her protection, and lawfully to be by any person taken, 
punished, and suppressed with extremity." 179 Until 1569 ships suspected of 
involvement in "piracy" and privateering without a commission had been 
treated with strict attention to English forms; they (the ships) were to be 
arrested only after arriving at English ports, and Vice-Admirals were simply 
warned against harboring or countenancing "pirates" within their jurisdic- 
tion as that jurisdiction was established by their commissions. 180 An indication 
of the difficulties of an increasingly centralized administration gaining legal 
control of English seamen continuing the ancient practice of re-capture 
without a license, abusing their opportunities and making general commerce 
of English as well as foreign merchants unsafe, lies in the recitation of fact 



Origins 41 

accompanying a Warrant from Queen Elizabeth to the Warden of the Cinque 
Ports (the English fortified towns strategically situated on the South coast) in 
1577: 

Whereas there is an unyversall complainte made as well by our owne merchaunts and 
fishermen, as also by other merchaunts straungers, being the subjects of our frinds and 
allyes, of the great number of pyrats and sea rovers haunting and keeping the narrow 
seas and streames thereof . . .; We having care that our streames should be quyet and 
voyde of such malefactors, and understanding that sute hath ben made to our previe 
Counsell on the behalf of divers townes corporat of our realme, being annoyed by such 
pyrates and sea rovers haunting their coasts, to have license to sett fourth shippes for the 
chastening and repressing of the said malefactors, offering to do the same at their owne 
adventure, proper costs and chardges ... by these presents do geve full power and 
authoritie unto you, to give and graunte commissions under the seal of your office of the 
Cinque Portes to as many, as well cities and townes corporat of this our realme, as you 
shall thinke good, as also to others whom you shall thinke such as will not abuse the same, 
to arme and sett fourth ... to purge and clere the sea coasts of such evill persons . . . 181 

Despite the language of outlawry in the Proclamation of 1569, the Warrant of 
1577 requires that the forms of English law be followed if any property were 
to change hands as a result of the law-enforcement effort. Persons licensed by 
the Warden of the Cinque Ports under this Warrant, if they wanted any 
compensation for their own costs to be paid out of "the proper shippes and 
goodes of the pyrats or sea rovers" they have caught, could do so only "after 
they have been thereof attaynted in the [form] of lawe as shall be thought 
convenyent by the [officials] of our Exchequier." 182 The procedure was set 
out in a series of commissions: 

Imprimis that the pyrats taken maye be brought to the next port, and there presented to 
the Vice Admirall, ... or the next justice of the peace, who shall send them to the nexte 
gaol, their [sic: ther (there)?] to remayne untill they be tryed by order of justice. 

That the shippes and goods and merchandizes in the possession of the pyrats be . . . valued 
by the oth of fower honest, skilfull, and expert persons . . . and then delyvered to the 
custodie of the said customer . . ., their to remayne unto such tyme yt maybe appear how 
much thereof shall appertaine to these pyrats, and how much to others. 183 

"Customer" apparently meant "customs enforcer," i.e., person holding a 
license to patrol the coast and see to the enforcement of English import laws. 
The word "pyrat" seems to have been applied to smugglers as well as those 
whose acts fell within the legal terms used in the legislation of Henry VIII 
quoted above. 

The term "pirate" was used also to cover Englishmen holding foreign 
commissions as "privateers" without the Queen's permission. In a Proclama- 
tion of 1575 the situation is clearly described: 

[H]er Majestie's will and pleasure is that none of her subjects should entermeddle in anie 
quarrells of anie forraigne prince or subjects, either on thone side or thother, (speciallie 
by sea), without her Majestie's license . . . Because now of late, under pretence of those 
forraigne services, manie piracies be dailie committed and done, yea in her Majestie's 



42 The Law of Piracy 

owne ports, and a great number of maryners ... be torned from good subjects to be 
pirates . . . And because her Heighnes hathe further bin informed that divers of her 
officers . . . have wincked often at theis disorders . . . express warning to all her 
Heighnes' officers that whosoever shall be hereafter founde to be negligent in the 
apprehending of suche malefactors in the execution of this proclamation, or shall 
wincke at their doinges, . . . shall not onlie lose their offices, but shall incurr her 
Majestie's further displeasure, and be suerlie punished . . . 184 

This Proclamation apparently rested on the assumption that "piracy" was not 
illegal at international law but only at English municipal law, and that the 
English jurisdiction was felt to be grounded in the relationship between 
subject and sovereign, not in any jurisdiction over the acts of foreigners. Some 
territorial aspect to jurisdiction seems to be implied by the failure to 
distinguish between acts done in "her Majestie's owne ports" as well as in the 
narrow seas (which were, in any case, regarded as within English prescriptive 
jurisdiction even if only to exclude foreign ships or make them as a legal unit 
obey English law without actually applying English law within them) and in 
the Warrant issued at about the same time to the Warden of the Cinque Ports 
mentioning "oure streames. " "Piracy" seems to have meant robbery or some 
other crime listed in the legislation of Henry VIII within the jurisdiction 
given then to Admiralty Commissions, and not acts done by foreigners 
outside of that jurisdiction. As noted above, that jurisdiction was territorial 
and extended to English flag vessels, but, despite the learned arguments of the 
minority in Regina v. Keyn, did not at this time in practice extend to foreign 
flag vessels on the high seas or foreigners within foreign vessels in English 
seas. 

The notion that persons holding a foreign license might be enemies but not 
criminals even if acting on board English vessels or against English vessels, 
even if acting in English rivers and portions of the seas, may be seen in the 
restriction to English subjects of the terms of the Proclamation of 1575. In 
approving the draft Warrant of 1577 Lord Burghley, the head of Elizabeth's 
administrative office, indicated that this was his conception. He wrote to the 
Warden of the Cinque Ports, Lord Cobham, that if there were peace between 
England and Spain the entire fuss would subside "for lack of victims." 185 
Further evidence that the word "pirate" was applied in 1577 without specific 
meaning at international law exists in a note by David Lewes, an Admiralty 
judge apparently consulted by Lord Burghley in this matter. At the bottom of 
a draft letter of assistance to Sir William Morgan ordering her Majesty's 
officials to help him prepare for his voyage of discovery and "also (if occasion 
so serve) to serve against the Turkes and Infydells," Lewes wrote "Instede of 
this make a permission to take pyrates, according to her Majestie's 
warrant." 186 It is hard to see how "Turkes and Infydells" were necessarily 
criminals at English law or how English law extended to places in which the 
discovery of unknown lands might be made. And there is no evidence at all 



Origins 43 

that "Turkes and Infydells" were conceived at that time as necessarily 
violators of international law in Europe. Indeed, it would seem that Lewes's 
note was not a legal translation of Morgan's request, but a denial of that 
request as it might apply to "Turkes and Infydells," restricting Morgan's 
authority to whatever authority was given to commissioners under the 
warrant of 1577. 

The needs of English commerce and possibly imperial policy seem to have 
influenced Lewes, and two years later, in 1579, he issued a legal opinion in 
which the earlier documents other than the Proclamation of 1569 were 
ignored and the most expansive statement of English jurisdiction was given to 
the Lord High Admiral: 

First it is lawful for every man, by the lawes of the sea, to apprehend and take pyrats, 
being public enemies to all estates, without authority or commission. 

Secondly, the Queen's Majesty for proclamation published in Aprill ano 11° regni sui 
[1569], hath declared and denounced all pyrats and rovers upon the seas to be out of her 
protection, and lawfully to be by any person taken, punished, and suppressed with 
extremity. 

Thirdly, the first and principall part of the Lord Admirall's office by law is, and ever 
hath been, to clear the jurisdiction apperteyning to his office, being the sea, of pyrats and 
rovers haunting the same; in respect whereof he hath, and ever hath had their goods and 
chattels, being condemned and atteynted for the same. 

Fourthly, by his Lordship's letters patents it may appeare that he hath a more ample and 
larger power than to set forth ships to take pyrats. 187 

The implementation of this opinion, which seems to have no legal argument 
in it to support its conclusions of law, indicates that it was not taken seriously 
as a statement of international law by the Crown. Shortly after it was issued, 
Elizabeth complained to Lewes as an Admiralty judge, Sir Gilbert Gerrard as 
Attorney General, and 13 others involved in the enforcement of the law, that 
the 1577 warrant had not worked well. Instead of simply instructing the 
Admiral to suppress "piracy" by seizing "pirates" wherever he found them 
under the general law of the sea or as outlaws under English law as Lewes's 
opinion seems to have urged, she stiffened the enforcement in England of the 
English procedures by providing for small Commissions consistently with the 
statute of Henry VIII: 

To enquire searche and trie out ... by oathes of twelve good men or otherwise by all 
waies and meanes you can devise of all manner of person or persons that have offended 
. . . contrarie to the lawes and statutes of this our realme or equitie and justice . . . 188 

The possibility that "equitie and justice" was intended to include interna- 
tional law seems to have been overborne by the need to dispose of the 
property of the "pirates," however defined, under the forms of English law. 
Those forms were essential to the prosperity of the Admiral however 



44 The Law of Piracy 

inconsistent with the view Lewes might have had as to the legal justifications 
at international law for individuals unlicensed by the Crown to seize 
"pirates." When a fearless adventurer like Sir Walter Ralegh was involved, 
there was no thought of his simply seizing "pirate" goods any place. His 
appointment in 1585 to be "Vice Admiral" was restricted to "the countie of 
Cornwall and the sea quoasts thereunto adjoyning," and he was required to 
post bond against the possibility that he might fail to make true account "of all 
suche piratts' goods, concelmentes, profitts, and casualties, as shall happen to 
growe and rise within the precincte of the said Viceadmirallshippe." Fully 
half of the "pirate" goods coming to him in his new post was to go to his 
political senior, the Lord Admiral. 189 And in 1589 an Order in Council was 
issued that all English captures, with no exceptions, must be submitted to an 
Admiralty court to have the lawfulness of the prize adjudged; failure to abide 
by the procedure meant that the buyers got no title and the commission under 
which the prize was taken was to be considered void. 190 

Coke's Synthesis. There are many documents relating then to the growth of 
the English law regarding prize and commissions, letters of marque and 
reprisal under the centralized administration Lord Burghley organized for 
Queen Elizabeth. In them there is no indication that "pirates" might be taken 
without a commission, 191 and by 1599 there is some indication that the word 
"pirate" was acquiring yet another meaning in English, as a generic term 
carrying with it the implication of criminality and applied to English captains 
who ignored the rules under which the Admiral made his living: 

[H]er Majestie now commaundeth, that whosoever shall herafter intermeddle with, or 
take at sea, any shippe or vessell coming from, or going to, any port or haven belonging 
to the sayd Seigneurie of Venice, or Grand Duke of Tuskane, and shall break the bulke of 
the goodes of any such shipp or vessell, (though the prise be lawfull), before the same 
shalbe adjudged good prize in the high court of the Admiralty, such offendors shalbe 
executed as pirates, and the shippe, with the prize also, shalbe forfeited to her 
Majestie. 192 

The relationship between the English municipal law regarding "piracy" 
and the international law of "piracy," if there was any before 1600, received 
attention at the most prestigious levels of English municipal law in 1615 when 
Sir Edward Coke, Chief Justice of England at the Common Law criminal 
court of King's Bench, presided over two cases in which "piracy" was an 
issue. The reports of these cases by Rolle are important to an understanding of 
the English conception of "piracy" as the word entered common legal usage 
and England became the world's greatest sea power. 

Marche's Case, alias Palachie's Case, 193 concerned a capture of a Spanish 
ship by a Moroccan official during a time when England regarded Morocco 
and Spain as legally at war. 194 Acknowledged as a subject of the King of 
Morocco, Palachie represented to the court that: 



Origins 45 

He is the Moroccan Ambassador to the Netherlands and that on the sea he captured a 
Spanish ship (there being war between the King of Barbary [sic] & the King of Spain) and 
then coming with the ship in England, & thereupon the Spanish Ambassador complained 
against him as a Pirate, & diverse Civil Law experts were commanded by the King [of 
England] to give their opinions on the matter. They agree that an Ambassador is immune 
from local law by the law of nature & of Nations, but if he commits any offense against 
the law of nature or of reason, he loses his immunity; not so if he offends only a positive 
law of any particular country, such as laws regarding clothing, etc. And many other 
questions were answered by the civilians; but as we [the panel] 195 and other common law 
Justices are asked for our opinions, we should say that the civilians have missed the point, 
because the Defendant is being tried here for piracy, and being tried under the statute of 
28 Henry VIII cap. [15? The text has a blank space here], which says that piracy should 
be tried as a felony committed on land under the common law. And what is charged as 
piracy here is not piracy nor would it be even a felony had it been committed on land [the 
report repeats some words here and seems slightly garbled] because it is legal for one 
enemy to capture another on land. According to our opinion and the relevant statute 
[which is cited] we hereby rule accordingly, that if anybody wants to bring charges 
against another under the pertinent statute [citing another] he who is robbed must prove 
that he himself was a legal friend of our Lord the King, and that he who robbed him was 
within the jurisdiction of our Lord the King or in legal friendship, because if the taking 
was by an enemy it was not robbery but lawful capture. As to Palachie's Case, we agree 
with the civilians that the [Spanish] Ambassador could proceed against him civilly for 
the goods that are here, for those are in friendly territory, (R[olle]: I question whether it 
seems that by the law of nations an enemy can legally take from another [in neutral 
territory?])Dod. suggests that rights of reprisal might be significant; Coke suggests that 
if goods were taken illegally and not restored, the King [of England] might simply 
return them. 196 Coke and Dod. also said that nobody could be hanged for piracy based on 
robbery on the Thames [River] because that is within an English county [thus outside the 
Admiral's jurisdication?]. 197 

In the second case, Hildebrand, Brimston, & Baker's Case, 198 English 
shipowners were trying to recover their ship in an in rem proceeding at 
Admiralty. The ship and cargo had been captured by "pirates." The 
petitioners sought the intervention of the King's Bench Common Law court 
to prohibit further Admiralty proceedings, apparently fearing the Admiral's 
interest in "pirate" goods would make it difficult for them to recover what 
they felt was theirs. 

Those men [petitioners] were the owners of a ship, and sent it to the Indies to trade. On 
the high sea the sailors took the ship through "Piracy" (as is assumed in the Admiralty 
court) and as the ship returned here to the Thames the Admiral seized it and all that is on 
it as "pirate goods," claiming it all for himself under the terms of his Royal warrant, and 
the merchants are taking the sails and tackling out of the ship and are suing for them in 
the Admiralty court. The Petitioners now pray for a "Prohibition" to that court, to stop 
the action. Coke agrees that the Admiralty has, by the grant of the King, all "Pirate 
goods;" i.e., the property of pirates. But the Admiralty does not have the goods which 
pirates took from other men, because that is not within the Royal grant; the owners have 
those things. And if the Admiralty wants those goods, it may not sue for them in prize 
because they are within the body of a county of England, that is, on the Thames. Dod.: If 
a man borrows a horse, and commits a robbery while riding it, the horse is not forfeit; so 
here, the ship is not forfeit simply because those who were in the ship committed piracy. 



46 The Law of Piracy 

Coke agreed, and he asked the Petitioners if they were convicted of piracy; to which 
they replied that nobody had been convicted. So the Prohibition was granted on the 
ground that the taking had been within the body of a county of England. 199 

It seems plain from both these cases that Coke was primarily concerned with 
the division of jurisdiction in England between the Admiralty courts and the 
Common Law courts; that to him "piracy" was simply the Admiralty word 
for an offense against the law of England that was based on the "Civil Law," 
i.e., the Roman law based system that English courts with extra-territorial 
reach applied to transactions occurring outside England, and not the 
Common Law; that it carried legal results at the Civil Law which were not 
the same as the legal results the same action would have drawn at Common 
Law. 

In summarizing the legal situation long after these cases were decided, 
Coke addressed "Piracies, Felonies, Murders and Confederacies committed 
in or upon the Sea" by first noting that James I's amnesty for felons given on 
his coronation in 1602 did not extend to pirates because theirs was not an 
offense at Common Law, but at Civil Law, outside the kingdom, without the 
legal result of forfeiture of land or corruption of "bloud" (i.e., disinheriting 
the children). 200 His entire discussion of the substance of the offense is based 
on the technical construction of statutory English law except for a major 
assertion that only subjects of England could legally be tried for "piracy. " To 
Coke "piracy" at Common Law was a type of "petit treason," and those who 
are not subject to the King of England cannot break the tie of allegiance, since 
there is no such tie, therefore they cannot commit treason, therefore, with 
only minor exceptions, there cannot be a foreigner guilty of "piracy. " 201 Since 
resident foreigners, denizens of the realm, do come within the allegiance of 
the King for some purposes, it might appear that Coke's language is 
somewhat too general and his conclusion too broad, but since "piracy" 
cannot occur within the realm, where the Common Law applies to the 
exclusion of Civil Law, that exception would not apply and Coke's analysis 
seems beyond dispute. The effect of Coke's approach, which seems to set out 
the traditional English position as reached by a judge concerned with 
questions of jurisdiction and limiting the Crown's discretion, is simply to 
make "piracy" the legal word of art that Admiralty tribunals and 
commissions set up under the Act of 1536 applied to some but not all o{ the 
"crimes" listed in that Act. As a kind of "petty treason," it would seem that 
all cases of "mutiny" in an English vessel, i.e., a vessel with a master whose 
authority over the ship's company and passengers is fixed by English law, 
could be denominated "piracy." Also, an attack by one English vessel on 
another could be denominated "piracy" since both vessels would have been 
conceived to have a legal existence deriving from a common superior, the 
Admiral or the Crown, and an attack by one on the other would necessarily 
involve a breach of legal subordination by the attacking vessel unless 



Origins 47 

otherwise authorized by the Admiral or Crown. But, if the law regarding 
"piracy" were part of the criminal law of England and derived from the 
feudal conception of treason, it could apply only to those within the 
allegiance of the Crown in England, just as King John's Norman knights could 
not commit "treason" by attacking John's English subjects, whatever else 
their acts may have meant legally. Under this "treason, " personal allegiance, 
conception, the English Admiral's jurisdiction, and thus the jurisdiction of 
Commissions set up under the Act of 1536, would apply only to English 
vessels, not to foreign vessels, in navigable waters (of course, all vessels infra 
corpus comitatus would be subject to the Common Law courts of the Shire, not 
the Admiralty at all). To Coke and the Common Law judges of England in the 
early 17th century, Admiralty jurisdiction itself must then have seemed in a 
sense territorial, with English ships filling the role of counties in England, and 
foreign vessels being ruled by the municipal laws of whatever countries gave 
their captains authority to command the ships' companies and passengers. 

One major gap must have disturbed Coke, although no mention of it 
appears in his known writings. What law governs the actions of a foreign 
vessel attacking an English ship, or an English vessel without license attacking 
a foreign ship? In both those cases, the breach of allegiance apparently 
necessary before the label "piracy" could attach, would be present only in the 
case of an Englishman aboard the foreign attacker or the fortuitous presence 
of an Englishman aboard the foreign vessel attacked. In the first case, it would 
seem that the assault on an English vessel would likely have been analogized 
to a similar assault in an English county's territory; the foreign attacker 
would have been guilty of an assault or robbery within the jurisdiction of the 
Admiralty under the Act of 1536, thus triable by a Commission; but the crime 
would not have been ' 'universal ' ' or "law of nations ' ' "piracy, ' ' it would have 
been "assault" or "robbery" or some Admiralty term, perhaps "piracy," 
equivalent to that. In the second case, there would have been no crime in 
England unless the breach of the terms of a commission or letters of mark and 
reprisal justifying the forfeiture of a deposit or other civil penalty. The gap in 
English law and jurisdiction here seems to have been the basis for the 
difficulties Queen Elizabeth's administration tried to solve by the Warrant of 
1577, and the path by which the vernacular word "piracy "began to enter the 
legal vocabulary applied to Englishmen injuring foreigners abroad. 

It should be noted that foreigners aboard English vessels were, by Coke's 
notion, "denizens" within the allegiance of the King of England, thus there 
was a territorial basis in the nationality of a vessel for attaching English 
jurisdiction to some foreigners. Coke's conception of the "high seas" (or 
navigable waters) did not apparently make them part of any "territorial" part 
of England or trace the Admiral's jurisdiction to any concept of territoriality 
other than the analogy between a vessel itself and a bit of English territory for 
the purposes of jurisdiction, and the notion that Common Law courts' 



48 The Law of Piracy 

jurisdiction stopped at the edge of navigable waters. The Admiral did not rule 
the seas, only English vessels on the seas and perhaps Englishmen in foreign 
vessels for some limited purposes where they, as the "denizens" of a foreign 
sovereign, had to satisfy two allegiances and could be the victims of English 
"pirates" in the traditional sense as persons against whom a "petty treason" 
at English law could be committed. 

From this point of view, the later notion that to be "piracy" there had to be 
an exchange between two vessels of different legal subordination was a 
complete reversal of the "petty treason" definition in English Common Law 
as applied in Admiralty. Also, from this point of view, the notion was 
excluded that England ruled the British seas as a matter of territorial right as 
Grotius might have argued. The Grotian view of mare clausum might have had 
considerable appeal to statesmen, but required a reconsideration of the 
fundamentally feudal English conceptions of jurisdiction. It was, of course, 
out of these inconsistencies that the confusions of Regina v. Keyn grew, as the 
English assertions of territorial rights in the "Narrow Seas" (the English 
Channel), the North Sea and elsewhere, or even in the three-mile strip of 
navigable waters surrounding the British Isles, were not matched by 
legislation placing those "territories" within the body of a county or within 
the "territorial" jurisdiction of the Admiral as the law-giver for English 
ships. 

Summary. Based on Queen Elizabeth's Warrants of 1569 and 1577, and the 
conceptions of territoriality that seem to underlie them, and the summary by 
Coke in the reign of James I some fifty years later emphasizing a breach o£ 
feudal personal ties as the root of the conception of the substantive crime of 
"piracy," it seems clear that later English assertions of jurisdiction over 
foreign "pirates" for their acts against other foreigners, or even against 
English vessels abroad, did not grow from any "natural law" concept of 
universal jurisdiction over thieves, or the universality of property rights. The 
assertions grew from the impact on English vessels or English persons of foreign 
depredations, the impact on an English ship being analogized to an impact 
amounting to physical presence in an English county, and the Admiral's 
jurisdiction being that of a county judge with regard to events within English 
traditional jurisdiction but outside the physical bounds of an English county. It 
seems that this conception is also what gave rise in later years to the notion, first 
expressed by Sir Leoline Jenkins in 1680, 202 that to be "piracy" two ships had to 
be involved; one of them being a ship flying the flag of the country whose 
"Admiral" was seeking a jurisdictional basis to hear the case. There is 
apparently no basis in the early English law for "universal" jurisdiction over 
foreigners abroad in connection with acts denominated "piracy." 

One other case before the King's Bench at about this time appears to have 
ended the question of the legal status of the Barbary states as far as concerns 



Origins 49 

English Common Law. In 1617 an Englishman named Howe was alleged to 
have sent his servant, Saddocke, with a known counterfeit jewel to 
"Barbary," where the jewel was sold for 800 pounds English money to the 
"Roy de Barbary." The King of Barbary, after discovering the fraud, 
imprisioned Southerne, another Englishman there, until Southerne repaid the 
value of the fraud. The transaction appears to be similar in sense to holding a 
foreign merchant through a capture under letters of marque and reprisal, 
responsible for the value of goods wrongfully taken by his countryman, 
except that there appears to have been no attempt first to exhaust the English 
remedies, perhaps because the "King of Barbary" did not choose to submit 
himself to English remedies as a matter of royal pride. Southerne then sued 
Howe for the amount of his ransom. Lord Popham threw the case out saying 
that there should be no legal indemnification to the plaintiff on the basis of his 
imprisonment without conviction in Barbary because that was merely an act 
of a "barbarous King, " for which he should seek remedy through a petition to 
the Crown, not through the courts. 203 Whatever else might be doubtful in the 
conclusion or reasoning of the case, the dictum that the "barbarous King" 
was nonetheless a King for being barbarous, implying that the Barbary states 
were states for purposes of English municipal law, and their rulers entitled to 
the dignity of foreign sovereigns, was clear. The case was frequently cited 
afterwards for that proposition, despite the fact that the same result would 
have flowed had the King been merely a pirate chief (why should Howe have 
been responsible for the lawless acts of an outlaw any more than for the 
lawful, or legally unchallengeable, acts of a King?). 204 

From this brief survey, it would seem that there were several different 
conceptions of "piracy" reflected in the English municipal law of the late 
16th and early 17th centuries and within those conceptions, several major 
issues of definition. One conception, expressed most persuasively by Lord 
Coke, was that "piracy" was not at all part of the Common Law of England, 
but was part of the "Civil Law" enforced in England in appropriate cases. To 
Coke, those cases were only those to which English concepts of jurisdiction 
gave purview to English officials responsible for enforcing the Civil Law. 
With regard to "piracy," he used the word to refer to a host of Civil Law 
offenses within the jurisdiction of the English Admiral by tradition and Royal 
delegation. That jurisdiction gave the Admiralty courts purview over 
offenses that would be Common Law offenses had they been committed with 
the "corpus comitatus," the body of an English county, and included any 
forcible takings, whether properly considered "robbery," "murder" or, 
apparently, any other violation of the King's peace. The people subject to that 
jurisdiction were those within the King's "ligeance," including English 
subjects wherever they might be, and foreigners acting within the territorial 
jurisdiction of the Admiral, i.e., in English ships. It did not apply to foreigners 
who acted under commissions of their own sovereigns, regardless of where 



50 The Law of Piracy 

and who their victims. Nor did it apply to foreigners without commissions 
acting beyond the "territorial" reach of English jurisdiction (including ships 
administered under English law). To Coke, the jurisdictional rules and ties of 
allegiance were the essence of the matter; the law defining the substance of 
the offense could be changed by statute. 

To David Lewes and presumably other Admiralty judges and officials, the 
word "piracy" carried much wider connotations. There appeared to them to 
be a wider general law forbidding "piracy " under which the Admiral and his 
delegates could act, if not indeed any person with or without commission. But 
what the precise definition of "piracy" was, whether it included all "Turkes 
& Infydells" regardless of their political organization or specific activities, 
and what happened to "pirate" goods once captured, were questions they 
seem to have left unanswered. Their conception seems to have derived from 
the use of the term "piracy" in vernacular English, taking what seemed 
politically useful, and ignoring those parts of the common usage, like 
reference to "lawful prize," that seemed to get in the way. The highest 
officials of England seem from time to time to have adopted this common 
usage, but despite Lewes 's position on the Admiralty court and as a 
Commissioner under the statute of 28 Henry VIII, his general notions appear 
never to have been translated into legal documents or English legal practice. 

To Sir Julius Caesar and other Admiralty judges, the concept of "piracy" 
was important as part of the Civil Law of property applied through in rem 
proceedings by English Admiralty courts. There seemed to be a tendency to 
use the word in connection with property seized within Admiralty jurisdic- 
tion without the authority of a commission or letters of marque and reprisal. 
But the legal result of that usage was connected with the disposition of the 
property, not the person who seized it. The usage did not reflect a concept of 
criminal law, but of property law; the 16th and 17th century English Civil 
Law version of the ancient Roman law of postliminium. 

Notes 



1. A.C. Spearing, Criticism and Medieval Poetry (2nd ed. 1972) 7. 

2. Raffles, Lady Sophia, Memoir of the Life and Public Services of Sir Thomas Stamford Raffles . . . (London 1 830), 
printing what appears to be a selection of the original letters of her husband, at p. 45-46. 

3. Id., p. 48. The entire letter, beginning at p. 39, is worth reading, especially p. 45-46, 48, 77-82, for its 
eloquent appeal to the concept felt by Raffles to be embodied in the word "pirate" in order to justify 
political action, contrasting with its gingerly referral to the jurisdiction of the Malay Rajahs as the 
enforcement authority to be applied. He apparently felt that what the young nobles were doing was not 
"piracy" at international law, but should be a crime under the law of the Malay sultanates from which the 
"pirates" apparently derived their licenses to interfere with peaceful shipping. See below Chapter IV. 

4. 2 Phillipson, The International Law and Custom of Ancient Greece & Rome (1911) 370. 

5. i, 367; vi, 58; ix, 588; xii, 64. 

6. xv, 385, 426; xvii, 425. 

7. i, 5-7, 8. 

8. 1 Homer, The Iliad (A.T. Murray, transl.) (LCL 1971) 30-31, 266-267, 424-425; 2 id. 458-459; 1 Homer, 
The Odyssey (A.T. Murray, transl.) (LCL 1960) 72-73, 320-321; 2 id. (1953) 102-103, 182-183; Thucydides, 
The Peloponnesian War (C.H. Smith, transl.) (LCL 1969) 8-9, 12-13. 



Origins 51 

9. "To destroy utterly, sack, waste, always of cites," Liddell & Scott, Greek-English Lexicon (8th ed. 
1897) 354. 

10. "Booty, plunder," id. 881; the word is "Zeis" in the Epic dialect, id. 889. 

11. Nestor's interview with Telemachus, Odyssey iii, 73, as translated by Murray in 1953, cited note 8 
above. "E ti kata preksin e mapsidios alalesthe hoia te leisteres hupeir hala toi t'aloontai psuchas parthemenoi kakon 
allodapoisi pherontes?" 

12. Hesiod, The Homeric Hymns & Homerica (H.G . Evelyn-White, transl.)(LCL 1954), Hymn III toDelian 
Apollo 352 at p. 356-357. O kseinoi, tines este? E ti kata . . . leisteres . . .? The first 177 lines of this Hymn are 
addressed to the Delian Apollo; the rest, including the lines cited here, to the Pythian Apollo. Homer, The 
Odyssey of Homer . . . (T.A. Buckley, transl. and notes) (1891) 349 note 1. 

13. i,5. The formula is different, but again the word derives from "leisteia," not "peirato:" "[Djelousideton 
te epeiponton tines eti kai nun, hois kosmos kalos touto dran, kai hoi palaioi ton poieton tas pusteis ton katapleonton 
pantachou omoios erotontes ei leistai eisin, hos oute hon punthanontai hapaksiounton to ergon, hois te epimeles eie eidenai ouk 
oneidizonton." 

14. Alfred Zimmern, The Greek Commonwealth (5th rev'd ed.) (1931) (Oxford paperback ed., 1961), p. 
237-238. 

15. Autenrieth, Homeric Dictionary (R.P. Keep, transl.) (1885) 252. 

16. Herodotus, [The Persian War] (A.D. Godley, transl.) (LCL 1931)462-463 (ii, 152): "... elthe chresmos 
hos tisis heksei apo thalasses chalkeon andron apiphanenton." 

17. Demosthenes, DeHalonneso, 2 On Postliminium, quoted (in Greek) in 2 Phillipson, op. cit. note 4 above, 
at p. 375 note 2: "touton de ton logon, hos ouk esti dikaios, ou chalepon estin autou aphelesthai. Hapantes gar hoi leistai 
tous allotrious topous katalambanortes kai toutous echurous poioumenoi enteuthen tous allous kakos poiousin. Ho de tous 
lestas timoresamenos kai kpatesas ouk an depou eikota legoi, eiphaie, ha ekeinoi adikos kai allotria eichon, tauth heautou 
gignesthai." The words "leistai" and "lestas" are translated "pirates" also by J.H. Vince. 1 Demosthenes, 
[Orations] (J. H. Vince, transl.) (LCL 1954) 151-153. See also "/e5fon"atp. 156 translated "pirates" at p. 157. 
On "leistrikos" as a form of political economy accepted as normal in ancient Greece see below and quotation 
from Aristotle at note 26 below. 

18. What is addressed here are sources focusing on Roman law and Roman perceptions. Since many 
educated Romans were literate in Greek, and some of the leading historians of Rome, such as Plutarch and 
Polybius, were of Greek heritage, writing in Greek, a simple distinction based on language would be 
misleading. 

19. 2 Cicero, Contra Verres II (L.H.G. Greenwood, transl.) (LCL 1953) iv, 21, at p. 304: "Fecisti item ut 
praedones solent; qui cum hostes communes sint omnium ..." This passage is translated in the same work (p. 305): 
" You behaved just as the pirates are wont to behave. They are the general enemies of all mankind ..." Cp. 2 J.B. Scott, 
Law, the State, and the International Community (1939), p. 326: "Pirates . . . are the general enemies of all 
mankind," citing Cicero, The Verrine Orations II, iv, 21. A more precise analysis of the word "praedones" 
would seem unnecessary here; one etymological study is enough for one book. Derivatives of the Latin 
word "praedor," "to make booty, to plunder, spoil, rob," Lewis & Short, rev'n, Freund's Latin Dictionary 
(Andrews, ed.) (1879) 1417, are commonly translated "pirate" or "piracy." 

20. 14 Livy, History of Rome ( A.C. Schlesinger, transl.) (LCL 1959) cxxviii at p. 159. The period described 
is 38-37 B.C. 

21. Id., p. 158: "Cum Sex. Pompeius rursus latrociniis mare infestum redderet necpacem, quam acceperat, praestaret, 
Caesar necessario adversus eum bello suscepto duobus navabilus proelis cum dubio eventu pugnatio." Again, it would 
seem unnecessary to delve into the precise usage of another Latin word, "latrociniis," whose relevance to 
this study is marginal. Derivatives of the Latin word "latro," "hired soldier, brigand," Lewis & Short, op. 
cit. note 19 above 1041, are commonly translated "pirate," "piratical," "piracy," etc. 

22. The most important, repeated by several later translators and scholars to support the assertion that 
"piracy " was a way of life to Homeric-Age Greeks, although the passage does not use the word "peirato" or 
any of its derivatives in the original, is from the Odyssey, ix, 39-42: Odysseus is speaking: 

Iliothen me pheron anemos Kikonessi pelassen, Ismaroi. Entha d' ego polin eprathon, olesa d' autous, ek polios d' 
alochous kai ktemata polla labontes dassameth ', hos me tis moi atembomenos kioi ises. 

The wind bearing me from Ilium made me approach the Ciconians in Ismarus; and there I laid waste 
the city, and destroyed them. And taking their wives and many possessions out of the city, we 
divided them, that no one might go deprived of an equal share . . . 

This careful translation by T.A. Buckley in Homer, op. cit. note 10 above, 116, avoids the English word 
"pirate." 

23. Of course, Odysseus 's band was poetically a group of warriors without fixed base seeking to return 
to Ithaka after the sack of Troy (Ilium). Although they derived their political existence from allegiance to 
Odysseus, the "King" of Ithaka, their precise composition and Odysseus's own legal power to mount raids 



52 The Law of Piracy 

against towns not in communication or "at war" with Ithaka is not examined. Presumably to the author(s) 
of the Odyssey, the question did not arise. 

24. The sack of Troy is usually placed several centuries earlier by scholars. But M.I. Finley convincingly 
argues not only that the fabled sack never took place, just as the stirring events of the epic Niebelungenlied and 
Beowulf could never have taken place outside of poetic imagination, but, more importantly, that the world 
reflected in the Homeric poems was the world of the historical tradition of their author(s), reflecting 
realities of the 10th and 9th centuries B.C. M.I. Finley, The World of Odysseus (2nd rev 'ded., Pelican Books 
1978) 48-49. 

25. Finley, op. cit., p. 63, after quoting the passage in Homer translated by Buckley in note 22 above. 

26. Id., p. 64. Aristotle mentions plundering [leistrikos] as one of five general categories of political 
economy: "the pastoral, the farming, the freebooting [sic], the fishing, and the life of the chase [Hoi men oun 
bioi tosoutoi schedon eisin, hosoi autophuton echousi ten ergasian kai me di' ullages kai kapelaeias porizontai ten trophen, 
nomadikos, georgikos, leistrikos, halieutikos, thereutikos]." Aristotle, The Politics (c. 350 B.C.) 1256b, (E. Barker, 
transl., 1946) 20 (1975 ed.) I, viii, 8. 

27. J. Bronsted, The Vikings (1965), passim esp. p. 26-27. The word "Viking" seems to have an obscure 
origin unrelated to attacks or attempts. 

28. 2 Polybius, The Histories (W.R. Paton, transl.) (LCL 1954) iv, 68, p. 461 . In the original Greek the key 
phrase is "Euripidas, echon Eleion duo lochous meta ton peiraton kai misthophoron ..." 

29. "[Amyntas] . . . epephane paradoksos peiratais tisin, apestalmenois hupo Demetriou . . . hoi Rodioi biasamenoi ton 
neon autandron ekurieusan, en hois en kai Timokles ho archipeirates." 10 Diodorus Siculus, [History] (R.M. Greer, 
transl.) (LCL 1954) xx, 97, 5 at p. 400-401. 

30. 10 Livy, [History of Rome] (E.T. Sage, transl.) (LCL 1935) xxxvii, xi, 6-7, p. 320-321: "Hinc Nicandro 
quodam archipirata quinque navibus tectis Palinurum iusso petere ..." 

31. See Plutarch's description of the same events at notes 36-39 below. 

32. 14 Livy, op. cit. note 20 above, xcix, p. 122-123: "Cm. Pompeius lege ad populum lata perequi piratas iussus, 
qui commercium annonae inter cluserant, infra quadragesimum diem toto mari eos expulit; belloque cum his in Cilicia confecto, 
acceptis in deditionem piratis agros et urbes dedit." The Cilicians [Kilissi] had had an unsavory reputation at least as 
early as pre-Aristotle Greece. See Demokos, "All the Cilicians are bad . . .," in The Greek Anthology (Jay 
ed.) (Penguin 1981) No. 38 at p. 47. 

33. 5 Plutarch, Parallel Lives of Greeks and Romans (C.B. Perrin, transl.) (LCL 1917) xxiv, p. 173-175. 

34. Id., p. 175. 

35. This Roman hegemony was achieved not by mere assertion or, indeed, by simple conquest, but in the 
main by diplomacy and by treaty. See Livy, Rome and the Mediterranean (H. Bettenson, transl.) (Penguin 
Classics \976), passim, for a lively English translation of the principal part of books 31-35 of Livy 's History. 
The Roman hegemonial system involved military alliances in return for which Rome guaranteed the 
personal position of the person invested as the embodiment of the legal power of the client state. A very 
clear and evocative description is Sallust, The Jugurthine War (J.C. Rolfe, transl.) (LCL 1931, 1960) 14. A 
lively modern translation is Sallust, Jugurthine War; Conspiracy of Cataline (S.A. Hanford, transl.) (Penguin 
Classics 1963). See esp. the speech of Adherbal to the Roman Senate in 116 B.C. in the Loeb edition 14.1-25 
at 14.7, p. 158; Penguin edition ch. IV, p. 47 sq. The British imperial system appears in many ways to have 
been patterned on the Roman, with "recognition" under the British interpretation of international law 
filling the place of investiture under the donation of the Roman Senate. Since the British interpretation of 
international law was not necessarily identical with international law objectively derived, and the 
municipal constitutional and inheritance law of the state principally involved actually determined 
representational powers, not international law as such, the British practice amounted to the establishment 
of British imperial law and the extinguishing of the foreign state as a person under international law; it led 
to many wars when pressed as a matter of law beyond British political power since it was essentially a 
political, not a legal, maneuver. Examples are dissected in Rubin, International Personality of the Malay 
Peninsula (University of Malaya Press 1974) passim, particularly the acquisition of Singapore as analyzed at 
p. 167-169, 253-277. The process is analyzed in some detail in chapter IV below. 

36. Plutarch, op. cit. note 33 above, xxv, p. 177: "egrapse de' Gabinios, heis ton Pompeiou sunethon, nomon ou 
nauarchian, antikrus de' monarchian autoi didonta kai dunamin epi pantas anthropous anupeuthunon." 

37. Just what these "crimes" were, and against what law other than the Roman hegemony that did not 
become law until after the conquest and the evolution of Roman conceptions of law under Augustus, is not 
clear. Furthermore, it appears that their "unpardonable crimes" consisted of resistance to the Roman 
sovereignty, since those who had participated in commerce-raiding but who surrendered seem to have 
been freely and humanely treated as conquered enemies. This passage looks like an illogical interpolation 
by a post-Augustan Greek scholar guarding his safety under a rigid Roman imperial system more interested 
in justifications than in historical accuracy. 

38. Plutarch, op. cit. note 33 above, xxvi-xxviii, p. 181-187. It has been suggested that the "pirates" 
whom Pompey had settled at Dyme returned to sea roving about 45 B.C. Cicero, contemplating a trip to 
Achaia in July 44 B.C., just four months after Julius Caesar's assassination in the Roman Senate chamber, 



Origins 53 

wrote: "It is not surprising that the Dymaeans, having been driven out of their land, are making the sea 
unsafe. "6 Cicero, Letters to Atticus(D.R . Shackleton Bailey, transl. and notes) 151 (1968), letter XVI. 1 (409) 
para. 3. In the original Latin: "Dymaeos agro pulsos mare infestum habere nil mirum. Id. 150. Shackleton Bailey 
suggests that the "pirates" who had been settled there by Pompey in 67 B.C. and the Dymaeans were the 
same folk, apparently "dispossessed by Caesar and returned to their old calling." Id. 281. Cicero does not 
seem shocked or to have any reference to criminality when he refers to them as "pirates" a few days later in 
another letter to Atticus: "It looks as though the legions can be dodged more easily and safely than the 
pirates, who are said to be in evidence [. . . devitatio legionumfore videtur quam piratum, qui apparere dicuntur].' 'Id. 
164-165, letter XVI. 2 (412). The "pirates" and the "legions" seem equally hazards to safe travel. The 
"legions" referred to were presumably the forces under the control of Marc Antony seeking to wrest 
control of Rome from the Senate after the death of Caesar. It was indeed one of the legionaries under 
Antony's command who killed Cicero attempting to escape Italy about a year and a half later. See text at 
note 47 below. 

39. Id., xxix at p. 189-191: ". . . alia tous te peiratas ekselon etimoresato, kai ton Oktaouion . . . apheken." 

40. Those results were essentially to put the losers at the discretion of the victors; the men were 
frequently killed and the women enslaved. There were no trials, no accusations or defenses, no lawyers 
involved. See Euripides, The Trojan Women (415 B.C.). See below. 

41. Livy, History, i. 23. An excellent modern translation of Books I-V of this work is Livy, The Early 
History of Rome (A. de Selincourt, transl.) (Penguin Classics 1971). See p. 59-60. 

42. Id., p. 60-61. Livy's version may reflect more religious myth than political history. Modern research 
in this area began with the reanalysis of Roman and Greek religious and political forms by N.D. Fustel de 
Coulanges, La Cite Antique (\864). See Fustel de Coulanges, The Ancient City (transl. unknown) (Doubleday 
Anchor Books 1956), Introductory note at p. 5-6. 

43. See below. 

44. Livy, op. cit. note 41 above, i, 32, at p. 69-71. 

45. Id., p. 381-383. 

46. Cf. Cicero, DeOfficiis, I, xi,36: "As for war, humane laws touching it are drawn up in the fetial code 
of the Roman People under all the guarantees of religion; and from this it may be gathered that no war is 
just [lawful?], unless it is entered upon after an official demand for satisfaction has been submitted or 
warning has been given and a formal declaration made [Ac belli quidem aequitas anctissime fetiali populi Romani 
iure perscripta est. Ex quo intellegi potest nullum bellum esse iustum, nisi quod aut rebus repetitis geratur aut denuntiatum 
ante sit et indictum]. ,, Cicero does not say that Rome never fought a war without going through the religious 
rituals, only that such wars should not be considered "lawful. " The Latin word "ius" in this context seems 
to relate solely to the form of "law," not to "justice" or morality. The English distinctions between 
"justice" and policy-based "law" are in many cases reversed in Latin, or simply disregarded; in this case 
Cicero was obviously referring to the "jus fetiali" adopted as a matter of discretion into Roman positive 
law and not reflecting "justice "except indirectly. To Cicero, "true law [vera lex] "was moral and overrode 
the positive law in cases of conflict. Cicero, De Re Publica, III, xxii, 33. Grotius, writing in the 17th century 
quoted Cicero's linking of the form of declaration with the phrase "bellum iustum" as an aspect of Roman 
law to support the very different notion that to be "lawful" under his concept of the law between states 
war must be declared publicly: ' 'Sed ut iustum hoc significatu bellum sit . . . ut audivimus, ut et publice decretum sit, et 
quidem ita decretum publice ut eius rei significatio ab altera partium alteri facta sir. " Grotius, De lure Belli ac Pads (1625, 
1646) III, iii, 5 (photographic reproduction 1925). F.W. Kelsey, translating this passage for the Carnegie 
Endowment edition of 1925, correctly translates "iustum" as "lawful. " 3 Grotius, On the Law of War and 
Peace (CECIL 1925) 633-634. This double transposition of a Roman positive law form into international 
law, and the reversal of meaning between "ius" and "lex" as the correct word for "moral law" or 
"justice" as distinguished from positive law, has created much confusion in later writings. In fact, Grotius 
seems to have read Cicero entirely correctly; to Grotius a "declaration of war" was, despite the quoted 
passage, clearly not required to bring into play the international law of war. An attack against a state or a 
refusal of reparations when legally due were, to Grotius, equivalent to a declaration of war under natural 
law, thus reducing the formal declaration to its place in positive municipal law. Id., Ill, iii, 6.1: "Naturali iure 
aut vis illata arcetur, aut ab eo ipso qui deliquit poena deposcitur, nulla requiritur denuntiatio ." In fact, public 
declarations of war in the days of the Roman empire were exceptional despite the religious ceremonies 
given such emphasis by Livy and Cicero. 4 Dio Chrysostom, Discourses (Discourse 38, To the Nicomedians) 
(H. Lamar Crosby, transl.) (LCL 1956) 48 at p. 67: ". . . while peace is proclaimed by heralds, wars for the 
most part take place unproclaimed [eirene men epikerussetai, polemoi de hos epi to pleiston akeruktoi gignontai]." 
Both "epikerussetai" and "akeruktoi" come from kerusso — to proclaim. It seems clear from the context that 
Dio Chrysostom, discoursing shortly after his return from exile in 96 A.D. (id. 49; 1 id. (Cahoon introd.) 
viii) apparently thought it common knowledge at that time that wars could be begun without formality, 
but some formality was needed to end them. Grotius quoted this passage from Discourse 38 to support his 
assertion that the law of nature allows people to dispense with the formality of declarations of war at least 
in some cases. In fact, the fetial practice had died out long before Livy described it and had become a more 



54 The Law of Piracy 

political than religious ceremony fully a century or two prior to the time of Livy and Cicero. Ogilvie, A 
Commentary on Livy Books 1-5 127-130 (1965). 

In addition to overstating the importance of religious ritual to the legal classification "war" or "peace" 
in practice, Cicero also seems to have confused to some extent the moral or legal right of a state to fight a 
war and the right of an individual to assert soldiers' privileges under the law of that state. He quotes Marcus 
Cato the elder for the proposition of Roman law that "the man who is not legally a soldier has no right to be 
fighting the foe [negat enim ius esse, qui miles non sit, cum hoste pugnare]" (De Officiis, I, xi, 37), but does not assert 
that an enemy is bound by the same rule, thus seems to imply that it is not a rule of natural law or 
international law, only a rule of Roman municipal law applied to determine whether a Roman citizen was 
exercising a military privilege to kill or not should the question arise. 

47. The complex politics of Rome at this period are not important to the present analysis. Cicero had 
sided with Pompey the Great against Julius Caesar at times, and with the Senatorial party of Brutus and 
Cassius against the triumvirate of Marc Antony, Lepidus and Octavian that seized power on the death of 
Julius. See 7 Plutarch, op. cit. note 38 above, 83 sq., esp. p. 206-207 making clear Plutarch's opinion of 
Antony's responsibility for Cicero's death, and the reasons for it. See also 3 Cicero, Letters to Atticus cited 
note 38 above, 179-181, letter VIII. 8 (131), paras 4-5, and letter VIII. 2 (152), penultimate paragraph, for 
insight into Cicero's relations with Pompey in 50 B.C. 

48. See note 19 above. 

49. De Officiis, III, 29: ". . . Nam pirata non est ex perduellum numero definitus, sed communis hostis omnium: cum 
hoc nee fides nee jus jurandum esse commune." 

50. Grotius, op. cit. note 46, II, xiii, 15; Kelsey translation volume at p. 373. As Grotius interpreted the 
quoted portion of Cicero's work, Cicero argued a non sequitur. 

That there is no perjury if the ransom for life, which had been agreed upon even under oath, is not 
paid to pirates, for the reason that a pirate is not entitled to the rights of war, but is the common 
enemy of mankind, with whom neither good faith nor a common oath should be kept. 

Cicero did not in fact mention the "rights" of war, and, as Grotius pointed out, there seems no reason why 
an oath to God should not be kept with even brigands; it hardly seems logical or moral to construe a 
violation of the law to lead to the conclusion that the violator is necessarily no longer protected by law. 
Even convicted criminals are in fact legally protected in many ways in many legal systems, including that 
of ancient Rome. 

51 . See below. Nothing has been found in Cicero's writing or Plutarch's or any other Roman sources of 
that time that can fairly be read to relegate "pirates" to overall treatment as criminals under Roman or any 
other law in classical times. 

52. Cicero, De Officiis III, xii-xvi. 

53. 7 Plutarch, op. cit. note 33 above, 441 at 444 sq. Plutarch's narrative of the famous episode in the life of 
the young Julius Caesar (he was 19 years old at the time) uses a derivative of the Greek work "peirato" in one 
place only (i. 8 at p. 444), in placing the capture near the "island Pharmacusa, by pirates [peiraton], who 
already at the time controlled the sea [ten Pharmakoussan neson hupo peiraton ede tote . . . katechonton ten 
thalattan]." Later, these "pirates" are referred to as Cilicians [Kilissi] (ii, 2, p. 444). They thus appear to be 
the specific people also involved in the Pompeian war of 67 B.C. No other passage has been found in which 
the word "peirato" or any of its derivatives was applied at this time to any other people. It is interesting to 
note that Suetonius in his recitation of the same incident (although placing it a few years later) does not use 
the Latin word "pirata" or any of its derivatives at all: "While crossing to Rhodes ... he [Caesar] was taken 
by pirates [praedonibus] near the island of Pharmacusa . . . [Hue . . . circa Pharmacussam insulam a praedonibus 
captus est. . . .]." 1 Suetonius, The Lives of the Caesars (J.C. Rolfe, transl.) (LCL rev'd ed. 1928) i, 4 at p. 7. 
Suetonius was writing about 120 A.D. Id., Introduction by Rolfe at p. xii. 

54. Cicero, Selected Works (M. Grant, transl.) (Penguin Classics 1971) at p. 177 note 1. Among Cicero's 
last works were 14 "Philippics" Against Antony. The revival of the "pirate" communities of the Eastern 
Mediterranean was noted by Cicero in a letter to his friend Atticus. See note 38 above. 

55. A convenient summary of dates, names and structure of the Justinian Digest and its place in the legal 
literature is Nicholas, An Introduction to Roman Law (corrected ed. 1969). The dates and other general 
information retailed here appear passim, esp. p. 30, 39-42. 

56. Corpus Juris Civilis (Mommsen & Krueger text, Kunkel ed.) (1954), XLIX.15.19.2, Paulus, OnSabinus, 
Bk. xvi: "A piratis aut latronibus capti liberi permanent." My translation is identical to that in 9 J.B. Scott, The 
Civil Law (1932) at p. 184, except for the interpolation of the word "legally" to avoid the absurd reading 
that captives are in fact free. 

57. Corpus Juris Civilis XLIX.15.24: Ulpianus, Institutes: "Hostes sunt, quibus bellum publice populus Romanus 
decrevit vel ipsipopulo Romano: ceteri latrunculi velpraedones appellantur et ideo qui a latronibus captus est, servus latronum 
non est, nee postliminium illi necessarium est: ab hostibus autem captus, utputa a Germanis et Parthis, et servus est hostium 
et postliminio statum pristinum recuperat. " 



Origins 55 

58. Id. L. 16. 118: Pomponius, Book II, Ad Quintum Murium: " 'Hostes' hi sunt, qui nobis aut quibus nos 
publice bellum decrevimus: ceteri latrones aut praedones sunt." 

59. It apparently dates back to Greek conceptions. See text and works cited at note 17 above. 

60. See below at note 120. 

61. The phrase appears to have gained currency as a shortening of the passage from Cicero quoted in 
note 49 above. The source of the paraphrase "hostes humani generis" has not been found. Blackstone 
attributed it to Sir Edward Coke. 4 Blackstone, Commentaries on the Laws of England (American Edition 
1790), p. 71. The phrase appears in Coke, Third Institute of the Laws of England ( 1628) (first published 1644) p. 
113: "pirata est hostis humani generis." But the form, as a Latin insertion in an English text, makes it look like a 
stock phrase Coke was borrowing from another source. See note 201 below. Coke finished his Third Institute 
in 1628 and died in 1634. The Third and Fourth Institutes were published at Parliamentary order from Coke's 
notes ten years later, when it was felt that Coke's well-known views of the supremacy of the law to the 
prerogatives of the Crown would help in the Parliamentary struggle against Charles I. Bowen, The Lion and 
the Throne (1956) , p. 510. Another possible source for Coke's phrase is Sallust, op. cit. note 35 above, 81.1, in 
which Jugurtha refers to the Romans themselves as "men with no sense of justice and of insatiable greed, 
common enemies of all mankind [Romanos iniustos, profunda avaritia communis omnium hostis esse . . . ] " (Hanford 
transl., Penguin ed. p. 113; LCL ed. p. 302). 

62. This is not the place to analyze the Roman law of postliminium. Its modern descendant is visible in 
the classical law of prize and salvage, and will be addressed as necessary in Chapter II below. 

63. See note 35 and text at notes 2 and 3 above. 

64. The earliest usages recorded by the Oxford English Dictionary are: 

. . . 1387 Trevisa, Higden (Rolls) VI, 415 the "see theves" of Danes (L. Dani piratae); 1426 Lydg. De 
Guil. Pilgr. 23963, I mene pyratys of the Se, which brynge folk in pouerte. 1430-40 - Bochas l.xii 
(1544) 38 this word pirate of Pirrhus toke the name. 1522 J. Clerk in Ellis Orig. Letti. Ser III. 1. 312, 
Pirats, Mores and other Infidels . . . 

OED "O-P" p. 901. Higden (or Higdon) and the Polychronicon are explained in 13 Encyclopedia Britannica 
(11th ed.) 454 (1910); John de Trevisa's translation and its place in the development of the English language 
is put into perspective in 9 id. 592. Trevisa's translation was apparently issued in 1387; there seems to be 
some petty inconsistency in the secondary sources about the date. As noted in the text above this note, it is 
not significant for present purposes, since the word "pirate" does not in fact appear in the English 
translation by Trevisa and the equation of the Latin "piratae" with the Middle English "see theves" appears 
to have no legal, or even any clear vernacular, meaning worth preserving except as an illustration of 
picturesque speech and some surviving underlying sense of the impropriety by the law of England as 
perceived in the 14th century of the activities of Vikings about three centuries earlier. 

65. Braudel, La Mediterran'ee et le monde m'editerran'een a I'epoque de Philippe II (1949). Because of the 
importance of the specific words I have translated the French original myself despite the existence of a fine 
English translation by Sian Reynolds of the 1966 2nd (revised) edition of Braudel's masterpiece. Braudel, 
The Mediterranean and the Mediterranean World in the Age of Philip II (S . Reynolds, transl.) (1973). In the original, 
p. 694, the text is as follows: 

Surl'Ocean, au XVIe siecle aussi boulevers'e que la mer Int'erieure par les pirates, et des pirates peut-etre plus cruels, 
la course prend un masque, se disguise en guerre semi-officielle avec la multiplicity des lettres de marque. . . . On a dit 
et r'ep'et'e que lapiraterie etaitfille de la Mediterran'ee. Image juste, mais souvent perdue de vue: les historiens n'ont 
d 'attention et de reprobation que pour les corsaires barbaresques. Leur fortune, qui fut grande, derobe le reste du 
paysage. Tout s'en trouve deform'e. Ce que Yon designe, chez les Barbaresques, sous le nom de piraterie, s'appelle 
h'ero'isme, pur esprit de croisade chez les Chevaliers de Make et ces non moins feroces coureurs de mer quefurent les 
Chevaliers de Saint-Etienne, bases a Pise par les soins de Cosimo de Medicis. 

66. Id. For convenience, citations to Braudel below will be used to refer to his work as translated by 
Reynolds, and the Reynolds translation will be quoted without closer analysis of its use of the word 
"pirate" or its derivatives. 

67. Id., p. 749. 

68. Id., p. 728. 

69. Id., p. 822: "As early as 1552 and again in 1565, Jewish protests had singled out for complaint the ships 
of the 'most evil monks' of Malta, that 'trap and net which catches booty stolen at the expense of Jews'," 
citingj. HaCohen, Emek Habkha, la valteedespleurs... 172 (1881) for the inner quotes. Braudel, op. cit. 822 note 
371. 

70. Id., p. 870. 

71. Id., pp. 883-884. 

72. Cf. Defoe, Robinson Crusoe ( 1719) ch. 1. Defoe is also supposed to be the author of A General History of 
the Pirates (1718) under the pseudonym of Capt. Charles Johnson. 



56 The Law of Piracy 

73. Chamberlain, The (Chamberlain Letters: A Selection . . . (E.M. Thomson, ed.) (Capricorn Books 1966) 12 
(letter no. 16 to his friend Dudley Carleton in the standard collection edited by N.E. McClure). 

74. Id. 124 (letter no. 132 to Carleton dated 29 January 1612). 

75. Id. 226 (letter no. 434 to Carleton dated 12 July 1623). 

76. Naval Songs and Ballads (NRS, Vol. 33) xx-xxi, 25-29 (1907). Rising national pride, so evident in 
Shakespeare's historical plays of this period, particularly Richard II, II. i.40 (1595) (John of Gaunt's paean to 
England) and Henry V (1599), led Captain John Smith in the last chapter of his Travels to attribute the war 
capabilities of the Turks and Moors to English renegades, whom he calls "pirates." That view found its 
way into English folklore, apparently through the writings of Andrew Barker, A True and Certaine Report of 
the Beginning, Proceedings etc. ofCaptaine Ward and Danseker, the Late Famous Pirates (1609), cited in Sir Godfrey 
Fisher, Barbary Legend (1957) 160. According to Fisher, Danseker was executed by the Dey of Tunis in 1611. 
Id. p. 142. Ward died in the Tunis plague of 1622-23. Id. p. 161. The idea that the Turks, whose fleets 
dominated the Mediterranean under Suleiman the Magnificent until their defeat at the battle of Lepanto in 
1571, had to learn military tactics or seamanship from an Englishman, seems at least something of an 
exaggeration. There was in Pact a revolution in maritime ventures at this time, in which new sail 
technology made ocean voyages feasible that had been too risky before, and the Mediterranean Muslim 
powers rejected it in favor of old, maneuverable, short-range galleys. But that change seems irrelevent to 
the activities of Ward and Danseker. Parry, The Age of Reconnaissance (1964) 69-84; Hess, The Forgotten 
Frontier (1978) 208-209. 

77. Chamberlain, op.cit. note 73 above 281 (letter no. 374 to Carleton dated 10 March 1621): "We hear 
that Sir Robert Mansell and his fleet have done just nothing, but negotiated with those of Algiers for certain 
slaves." 

78. Naval Songs and Ballads, pp. 31-32, "The lamentable cries of at least 1500 Christians: Most of them 
being Englishmen ..." 

79. Id., pp. xxii-xxiii. 

80. See below. 

81. Calendar of State Papers, Colonial Series, East Indies, China and Japan, 1622-1624 (Sainsbury, ed.) No. 143at 
p. 64 (1878, 1964). This is in a report dated 27 August 1622 from the British East India Company's Council in 
Batavia (Richard Fursland (President), Thomas Brockedon and Augustine Spaldinge) to the Company in 
London. 

82. Id., No. 367 at p. 196. Fursland had died and was replaced on the Council by Henrie Hawley and John 
Goninge; Thomas Brockedon apparently acted as President. 

83. Id., No. 368 dated 14 December 1623 at p. 202, report to the Company in London. 

84. Id., No. 565, p. 365, signed by Brockedon, Hawley and Goninge. 

85. Id., No. 303, p. 125, Minutes of meetings concluding 23 June 1624. Eventually, the Company paid two 
tenths to the King in order to obtain the release of their vessels from arrest by the Admiral. 

86. Id., No. 481, p. 294, Minutes dated 23-25 June 1624. 

87. In addition to Braudel, loc. cit. above note 65, see Fisher, op. cit., note 76 above, esp. pp. 137-145 and 
sources cited there. 

88. Belli, De Re Militari et Bello Tractatus (1563 ed. photographically reproduced) (CECIL 1936) Part II, ch. 
xi: ". . . excipi Piratae . . . qui enim omnes habent pro hostibus, debent ab omnibus expectare rependi vices ..." The 
translation by H.S. Nutting is published in another volume of the same set. The English excerpts in the text 
above this note are from p. 83 of the translation volume by Nutting. On the post-glossators, see Nicholas, 
op. cit. note 55 above at p. 47. 

89. Belli, op. cit., (Nutting, transl.) p. 83. The Latin (p. 39) refers to persons who "sint extra omne legum" 
but does not use any single word for "outlaw." 

90. Id., p. 88, Part II, ch. xiv. Belli quotes Cicero verbatim. See note 46 above. See also note 50 above and 
note 124 below, where the position of Grotius and his criticism of this passage by Cicero are set out more 
fully. 

91. Ayala, De lure et Officiis Bellicis et Disciplina Militari (J. P. Bate, transl.) (CECIL 1912) I, ii, 15. The 
original says: 

Hinc iura belli, captiuitatis, & postliminij, quae hostibus tantum conueniunt, non posse rebellibus convenire, 
consequens videtur: sicut nee piratis & latronibus (qui hostium numero non continentur) conueniunt, quod ita intelligi 
debet, vt ipsi iure belli agere non possint: ideoqi dominium rem captarum non acquirunt, quod hostibus tantum 
tributum est in ipsos vero iure belli faeuire, multoque magis quam in hostes, licet: suntenim odio digni maiore, & non 
debet esse melioris conditionis rebellis & latro, quam legitimus & iustus hostis. 

Oddly, the Latin version is photocopied from the first edition of 1581, but the translation seems to be based 
on the 1597 edition. 

92. Ayala's father was a Spaniard, married to a Belgian and resident in Antwerp for some 16 years before 
the birth of Balthasar in 1548. The Ayala family were very well connected with the Habsburg monarchy. 



Origins 57 

The Act of Abjuration was passed by the States General of the Netherlands in 1581. Until 1648, Spain 
denied the legal labels resulting from the ability of the Netherlands to maintain its independence militarily. 
The standard works on this watershed episode in European history are J.L. Motley, The Rise of the Dutch 
Republic (1856) and The United Netherlands (1860). 

93. Gentili, De lure Belli Libri Tres (1612) (J.C. Rolfe, transl., introd. by Coleman Phillipson) (CECIL 
1933) 12a-14a. 

94. Id., Book I, ch. ii. The English translation throughout is by Rolfe. The Latin is from the 
photographic reproduction of the edition of 1612 in 1 Gentili, op. cit. Rolfe 's translation of "iusta" as "just" 
seems very dubious. See note 46 above. 

95. Id., p. 22, quoting the passages from Ulpian and Pomponius set out in notes 57 and 58 above. In 
Gentili's quotations as in the originals, the word "pirata" or its derivatives does not appear; those debarred 
from entering the legal state of war are termed "latrunculi" or "praedones." Thus the Rolfe translation of 
Ulpian, "All others are termed brigands or pirates" (p. 15) seems a serious mistranslation of Gentili's 
quotation from Ulpian: "caeteri latrunculi, vel praedones appellantur." Also, Gentili's conclusion immediately 
following the quotations from Pomponius and Ulpian, "That is to say, the war on both sides must be public 
and official and there must be sovereigns on both sides to direct the war [Publica ergo esse artna vtrinq; oportet, & 
utrinq; esse Principes, qui bellum gerant]," seems a non sequitur. 

96. Id., ch. iv. 

97. Id. Again, Rolfe 's translation seems imprecise; Gentili did not say that Pomponius and Ulpian 
actually came to that conclusion, but that that legal conclusion flowed from their definition. 

98. Id. "Piratae omnium mortaliu hostes sunt communes. Et itaque negat Cicero, posse cum istis intercedere iura belli. " 

99. Id. "Si praedonibus pactum pro capite pretium non attuleris, nullafrausest . . ." Rolfe translation: "If you do 
not pay brigands the price demanded in exchange for your life, you do no wrong ..." 

100. Id., last lines of the chapter: 

Sed quid sentimus nos de his Gallis, qui capti postremo bello Lusitanico ab Hispanis, & tractati sunt non quasi iusti 
hostes? Tractati sunt quasi piratae: qui Antonio militarent, pulso iam de regno vniuerso, & in regem agnito ab 
Hispanis nuqua. At ipsa historia vincit, eos non fuisse piratas: non dico per argumentum ductum a numero, & 
qualita te virorum, ac nauium; sed per literas,quas regis sui ostendebant, cui regi seruiebant, non Antonio, esti 
maxime pro Antonio, quod illos non tangebat. 

101. See text at note 93 above. A collection of Gentili's briefs before the English Royal Chamber was 
published posthumously in 1613. Gentili, Hispanicis Advocationis (1613, 1661), reproduced photographically 
by CECIL in 1921. The English translation of the 1661 text published in Vol. II of the same set is by F.F. 
Abbott. 

102. See, e.g., letter of 1295 (23 Edw. I) authorizing an English captain to make capture [licentia marcandi] 
up to the value of the goods spoiled by "the men and subjects of the realm of Portugal." 1 Marsden, ed., 
Documents Relating to Law and Custom of the Sea (NRS, Vol. 49) (1915) 38. 

103. The Oxford English Dictionary definition is in Vol. VI, p. 179. It defines "marque" as meaning merely 
"reprisal" and traces it back to medieval Latin "marcare," "to seize as a pledge." The first English use 
given is the law-French of a statute, 27 Edw. Ill, stat. 2 c. 17 (1353) quoted in part in the text above this note. 
See note 176 below. The American Heritage Dictionary, pp. 751, 1529, traces the word back to the Indo- 
Germanic root "merg-": "Boundary, border" via Old Provencal "marcar," "to seize." The phrase 
"marquandi sue gagiandi" ("marque and recapture"?) appears in a document of 1293 cancelling a similar 
license that had apparently been issued earlier. 1 Marsden, op. cit., p. 19, 38-39. 

104. The practice of holding prize courts only in the territory of the capturing country as an aspect of 
belligerency does not seem to have become clearly established until somewhat later. 2 Marsden, op. cit. 
(NRS, Vol. 50) (1916) xii. 

105. Gentili, Hisp. Adv. cited note 101 above, Book I, ch. iv at p. 15. 

106. Id., ch. xv at p. 68: ". . . stendi piratis locum oportunissimum navigationibus propinquissimum Hispanicis, 
habitatum mercatoribus Anglis, ubipraedas suas possint suis distrahere, sijusistud constituitur fisci illus terrae. Hoccinepro 
mercaturaV The translation by Abbott seems unnecessarily awkward. 

107. Id., ch. xxii at pp. 101-105. This is not the place to argue substance, but it might be noted that 
Gentili's argument seems to confuse liens based on salvage-like services with property rights derived from 
a thief. The first derive from principles well known in Gentili's time. Aside from the analogy to 
postliminium and the Roman law principles set out in part in Justinian's Digest and mentioned above, the 
Laws of Oleron, cited at note 150 below, articles 3, 22 and 30, had already been part of the Law of England 
for about 400 years and established the basis for the modern English law of maritime salvage. 

108. See below, Chapter II. 

109. He is not specific, but seems to be referring to ch. iv cited at note 105 above. 

110. Id., ch. xxiii, pp. 105-112 at p. 112: ". . . quoderipitur nostris negotiatio Tunetana, Algeriana, alia non una per 
haec Venetorum dicta, quod sint illae civitates nil aliud nisi receptacula piratarum, ned in illis sint nisi piratae, & sint in illis 
ipsi quoque magistratus piratae. " 



58 The Law of Piracy 

111. Gentili's approach, which might be considered the birth of "positivism" as an operating theory of 
international law, is most lucidly elaborated and the role of "recognition" harmonized with current 
practice by Kelsen, Recognition in International Law, 35 AJIL 604 (1941), and Gross, States as Organs of 
International Law and the Problem of Autointerpretation, in Lipsky, ed., Law and Politics in the World 
Community (1953) 59-88 reprinted in 1 L. Gross, Essays on International Law and Organization (1984) 367. 

112. Dumbauld, The Life and Legal Writings of Hugo Grotius (1969)3-4; "Voitale miracle deHollande,' 'id., at p. 
56 note 165. 

113. Id., p. 23, 58. Grotius died in 1645, reportedly regretting that "by undertaking many things, I have 
accomplished nothing!" Id., p. 18. 

114. Id., p. 16. 

115. 2 Grotius, op. cit. note 46 above, Book III, chs. i and ii (p. 630-631). 

116. Id., p. 631. The key passages in the original Latin are: " Non autem statim respublica aut civitas esse desini, 
si quid admittat injustum, etiam communiter, nee coetus piratarum aut latronum civitas est, etiamsi forte aequalitatem 
quandam inter se servent, sine qual nullus coetus posset consistere. Nam hi criminis causa sociantur: illi etsi interdum delicto 
non vacant, juris tamenfruendi causa sociati sunt, et exterisjus reddunt ..." 3 Grotius, Dejure Belli ac Pads ( Whewell 
ed.) Ill, ii, 1 (1853) p. 54-55. Unless the context indicates otherwise, all citations below to Grotius's Latin 
original text are taken from Whewell's edition, and all English translations are by Kelsey. 

117. See above note 57. 

118. Caesar, De Bello Gallico, VI, xxiii; Tacitus, De Morib. Germ. ch. 46, Ann. xii, 27, Hist, iv, 50. These 
citations by Grotius do not seem particularly strong to support his point, but the point itself, that the 
Germanic tribes were treated as legal enemies in war despite the Roman opinion that their political and 
social organization was contemptible, is beyond dispute. 

119. Appian, Bell. Illyr. ii; 9 Plutarch, op. cit. above note 33. 

120. It was pointed out in the text above at note 57 that Justinian's Digest addresses the legal inability of 
"pirates" to effect a change in the personal status of captives, but extends that legal incapacity in the case of 
property only to "latrones" and "praedones." 

121. Grotius, op. cit. Book III, ch. iii, sec. ii para 3. 

122. Grotius does not say how this comes about legally, implying that it is not by "recognition, "but by 
the force of natural law. 

123. Grotius, op. cit. Book III, ch. iii, sec. 8 last sentence, quoting with approval St. Augustine, De Civ. 
Dei IV, iv: "[H]oc malum si in tantum perditorum hominum accessibus crescit, ut et loca teneat, sedes constituat, civitates 
occupet, populos subjuget, regni nomen assumit [If by accessions of desperate men this evil grows to such 
proportions that it holds lands, establishes fixed settlements, seizes upon states and subjugates peoples, it 
assumes the name of a kingdom]." It is hard to see how this description could not be applied to the li peiraton" 
of 67 B.C. 

124. Grotius used the word "pirata" or its derivatives in five other places in Dejure Belli ac Pads: (1) In 
confuting Cicero as mentioned at note 46 above (Book II, ch. xiii para. 15(1)); (2) In a passing reference to 
Roman taxes for Red Sea navigation beingjustified by the expenses of suppressing "piracy" (Book II, ch. iii 
para. 14); (3) In a passage slightly amending Cicero's position that oaths to enemies must be kept while 
oaths to "piratae" need not be kept — Grotius eviscerates Cicero's entire polemical point by adding "unless 
an oath prevents," i.e., unless you have promised the pirate that you would keep your word to him! (Book 
II, ch. xvii para. 19; cf. above note 50); (4) In a passage approving the exchange of legation with rebels but 
not with "pirates and brigands, who do not constitute a state [Piratae et latrones, qui civitatem nonfaciunt]" and 
therefore do not come under the rule of the law of nations — but this rigid position is immediately softened 
by observing that "Sometimes, nevertheless, persons of such character obtain the right of legation on the 
strength of a pledge of good faith [Sed interdum tales qui sunt, just legationis nanciscuntur fide data]" (Book II, ch. 
xviii, para. 2(3)); and (5) In a possible slap at Gentili through mention of the record showing Pompey to 
have concluded his war with the pirates "in great part by means of treaties [Atqui belli piratici magnam partem 
Cn. Pompeius pactionibus confecit] ,y (Book III, ch. xix para. 19(2)(2)). Curiously, the indexes to neither the 
Kelsey translation nor the Whewell edition carries a reference to the first of these uses. 

125. Id. Ill, ix, 19(2). This language appears in the Amsterdam (Blaeu) edition of 1632. I have not been 
able to check the 1631 and 1625 editions. It appears in all later editions. 

126. In 1604 Grotius drafted an argumentative brief, completed in 1606, to justify the Dutch seizure in 
the Straits of Singapore of a Portuguese "prize" at a time when the Dutch did not claim belligerent rights 
against Portugal despite the union of the Portuguese and Spanish dynasties between 1580 and 1640. Basing 
his argument on a "natural" right of trade and thus the inadmissability in law of Portuguese monopoly 
treaties with the Sultans of the Malay Archipelago, Grotius concluded that the Portuguese actions were 
criminal and that Dutch countermeasures could properly include captures in reprisal. 1 Grotius, De lure 
Praedae Commentarius (1604) [sic] (Williams and Zeydel, transl.) (CECIL 1950) 327. The entire background is 
conveniently set out and Grotius's principal arguments paraphrased and summarized in Dumbauld, op. cit. 
23-56. The broader historical background is set out in Rubin, International Personality of the Malay Peninsula 
(1974) 29-32. 



Origins 59 

127. In the Williams and Zeydel translation the word "pirate" is used where, in note 126 and here, I have 
used the word "criminal." It is not certain that either is correct. Volume II of the set contains a 
photographic reproduction of the actual Latin manuscript, and in the page corresponding to p. 327 of the 
translation in Volume I, (2 Grotius, De lure Praedae Commentarius, p. 147) I cannot find the word "pirata" or 
any of its derivatives. The word "latro" does appear but not in a place that seems to correspond to either of 
the two places in which the translators have used the word "pirate. " Although Grotius' handwriting seems 
clear enough, I am not prepared to match my amateur acquaintance of Latin and my almost total 
non-acquaintance with Dutch calligraphy of 1604-1606 against the expertise of the translators. Still, for the 
reasons set out above, it would be well to be cautious about this translation and its use of the word "pirate. " 

128. Grotius, Dejure Belli ac Pads Book II, ch. iii, para. 13(2). 

129. E.g., Athenian claims asserted against Megara, Thucydides, op. cit., IV, cxviii, and Dio Cassius's 
mention of "all the sea which belongs to the Roman Empire," Roman History, XLII, v. 

130. The evolution of "England" to "Great Britain" and the "United Kingdom" (including Scotland, 
which has its own legal history and current municipal law), involves a political narrative of daunting 
complexity. Fortunately, it is not necessary for present purposes. It was the law of England, not the law of 
Great Britain or the United Kingdom, that became the most influential set of prescriptions and was 
administered by the most wide ranging system of naval activity and courts, and which lies at the roots of 
American conceptions of the interplay between the municipal law of "piracy " and international law. The 
law of Great Britain and of the United Kingdom will be referred to as appropriate later in the narrative. 

131. It is not proposed in this place to trace the word or the concept (if there is any discrete concept) of 
"piracy" in non-legal English usage. It might be useful to those so inclined to mention that the earliest trace 
of the concept seems to be in the epic Beowulf (eighth century A.D.). In line 242 there is reference to the 
sea-watch guarding the Danish coast that "lathra naenig/mid scip-herge sceth than ne meahte [none of our enemies 
with their fleet of ships might harm us]." Chickering, Beowulf ; A Dual Language Edition (1977)63. The word 
"lathra" is translated "enemies" by Chickering. It is commonly translated "pirates." Cf. translation by 
David Wright in Penguin Classics edition (1957) at p. 32. Wright also translates as "pirates" (p. 33) the 
word "feonda" in line 294. The similarity of the word "/af/zra" to the Latin "/afro" is too clear to be missed. 
The Latin word "pirata" or its derivatives does not appear in Beowulf. 

132. Regina v. Keyn (frequently indexed as R. v. Keyn, Reg. v. Keyn or The Queen v. Keyn) [1876] L.R. 
2 Exch. Div. 63, reprinted at length in 2 British International Law Cases (BILC) 701 at 756-800. That case 
turned on the question of whether the statutory municipal laws of England applied to acts by foreigners on 
board foreign vessels in waters less than three miles from the English coast in the absence of a clear 
indication from the Parliament that the law was intended to apply beyond the land, except in British flag 
vessels. Fourteen judges heard the arguments. One died during the course of the proceedings and the final 
decision, that the law of England did not apply to foreigners in foreign ships even in England's territorial 
waters in the absence of a clear expression of Parliament's intention, was carried by a 7-6 majority with 
substantive views expressed by nine of the judges in individual opinions. 

133. Marsden, ed., Select Pleas in the Court of Admiralty (Selden Society, Vols. 6 and 11) (1894, 1897) and 
Marsden, ed., Documents Relating to the Law and Custom of the Sea (NRS, Vols. 49 and 50) (1915, 1916), cited at 
notes 102, 104 above. 

134. Cockburn relied heavily on Hale's Pleas of the Crown, but does not seem to have checked Hale's 
sources. Hale, Pleas of the Crown (1685 ed.) 77, in fact refers to "Piracy" and "Depredation upon the Sea" as 
a species of "petit Treason, if done by a [British] subject. " Hale implies without any evidence what it was 
triable at Common Law until the Statute of Treasons, 25 Edw. Ill statute 5 c. 2 (1352). But his source is 
clearly Coke, who in his Third Institute, emphasized not the "piracy" aspect of the offense, but its 
relationship to the law of "treason," limiting the jurisdiction of British Common Law courts to the 
jurisdiction they had in other cases of "petit Treason" and in no way implying any purview over the acts of 
foreigners outside of England. See note 201 below. Aside from this possible unintended implication in Hale, 
there was no doubt that Hale knew that the offense of "piracy " was triable only at Civil Law, not Common 
Law, in England from 1352 to 1536: 

Since that Statute [of 1352] an offence triable by the Civil Law until 28 H. 8.15 [1536]. 

The Stat. 28 H. 8 alters not the offence; but it remains onely an offence by the Civil Law: and 
therefore a pardon of all Felonies doth not discharge it: but it gives a trial by the course [i.e., 
procedures] of Common Law: ... It extends not to Offences in Creeks or Ports within the Body of a 
County, because punishable by the Common Law. 

"Civil Law" was the body of law administered by Admiralty and some other non-Common Law courts of 
England. See below. Thus, to the degree Cockburn meant to imply that "piracy" in any way pertinent to 
the case of foreign actions on board a foreign ship was historically an offense against English Common 
Law, he was certainly wrong with regard to actions after 1352, and probably wrong with regard to actions 
before then. 



60 The Law of Piracy 

135. 18 Edw. II (1325) and 25 Edw. Ill (1352). 

136. 2 BILC 759. 

137. 1 Marsden, Documents at p. 99-100 note 1. 

138. Id. Table of Contents regarding p. 12, headnotes at p. 2, 6, 10,31, 46, 74, 89, 136, 371 , 388, 391 . This 
list is not exhaustive. 

139. E.g., Holdsworth, A History of English Law (1922-1928). 

140. Since in some cases Marsden modernizes the spellings, and in others he seems to prefer what seem 
quaint and false antique spellings, it is impossible to be certain about the accuracy of his reprinted 
"original" texts without duplicating his entire research; a patent impossibility at this time. 

141. 1 Marsden, Documents 2. 

142. Id., p. 7. 

143. Id., p. 10-11. 

144. Id., p. 8 and 69. Marsden interprets these documents of 1276 and 1341 as involving the King in suits 
before his own Common Law courts for a share of the value of a "prize" taken by English seamen without 
license of the Crown. The King apparently lost. 

145. Id., p. 19, 38-39. See notes 102 and 103 above. 

146. Id., p. 19 (revoking a letter of "marque or reprisal [marquandi seu gagiandi]" in 1293); 38-39 (informing 
the administrators of the realm of the proper issuance of letters of marque by "our nephew, John of 
Brittany" in 1295); 88-89 (transferring the trial of English malefactors from the Common Law courts to the 
jurisdiction of the Admiral's court because the robbery had occurred at an unspecified place at sea, not 
within any particular shire of England in 1361 — it is not clear whether this case involved any foreigners or 
letters of marque). 

147. Loc.cit. note 143 above. 

148. Id., p. 84-88. 

149. Id., p. 88-89, cited note 146 above. 

150. 1 Peters, Admiralty Decisions . . . (1807) Appendix, p. iii. 

151. 1 Marsden, Documents, pp. 100-101: "qui malefactores, et pads nostre perturbatores diversas roberias 
depredaciones sediciones ac interfectiones' '; English by Marsden. 

152. Id. p. 101-102: ". . . legem et consuetudinem regni nostri Angliae et legem maritimam." 

153. Id., p. 132-134. The Latin original uses the word "pirata" (p. 135). I omit mention in the text of a 
treaty of 1414 between Henry V and the Duke of Brittany which Marsden translates as containing an 
obligation not to "receive any traitors, fugitives, banished men, pirates, or exiles. "Id., p. 127-128. As noted 
above, W irsden's translations are not always reliable; Marsden does not quote any Latin or French text and 
it is unliicely that the original was written in English; nor is Marsden's reported English version the English 
of the time of Henry V. 

154. Id., p. 145-146. 

155. Id. 

156. Id., p. 146-147. 

157. Id., p. xv, xviii. 

158. Id., p. 149, where it is indicated that the Admiralty courts had been allowed to atrophy and were 
revived only in 1520. 

159. 27 Hen. VIII c. 4 (1535), in 4 Pickering, The Statutes at Large (1763) 348 sq. 

160. Id., 348-349. The 18th century English must be Pickering's transliteration. The original language is 
not given in this source. Presumably it was identical with the language of the Preamble to 28 Hen. VIII c. 15 
(1536). See below. 

161. 4 Pickering, op. cit., 441-443; 26 AJIL Spec. Supp. 913-915 (1932). Reproduced in Appendix LA below. 

162. See note 134 above; note 201 below. See the laws of Oleron, cited note 150 above, arts. V-VII, 
XII-XIII, XIX. The blend between mere contract service and a status relationship entered into by contract 
(as the feudal relationship was entered into by contract forms also) is too complex to analyze here. See 
Pollock & Maitland, The History of English Law (2nd ed.) (1898) passim. 

163. "Mutiny" enters the legal vocabulary in England only with the adoption of the Mutiny Act of 1689, 
1 Will. & Mary c. 5 (1689), referring not to mariners but to soldiers who "excite, cause, or join in any 
mutiny or sedition in the army, or shall desert their majesties' service in the army." 

164. Op. cit. note 161 above. 

165. "A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony; 
there must be some breach of that faith and trust which ought to exist between lord and man, " 1 Pollock & 
Maitland, op. cit. note 162 above, 304. By Coke's time "felony" had come to cover all serious Common Law 
offenses, but not Admiralty offenses and not treason, which had become a statuatory offense with its own 
procedures. See Coke, Third Institute 15; note 201 below; Chapter II text above notes 4-33. See also 2 Pollock 
& Maitland, op. cit. 502. As to the relationship between "trespass" and "felony," see id. 511-512. 

166. The precise territorial boundary between Admiralty jurisdiction and the Common Law jurisdiction 
evolved over time. The first boundary was merely between things done upon the sea and things done within 



Origins 61 

the realm. 13 Rich. II c. 5 (1390). Within two years Parliament had decided a clearer line was needed, and 
drew it at the bridges nearest the mouth of the river, offenses upstream belonging to the Common Law 
courts, because infra corpus comitatus, offenses downstream to the Admiralty. 15 Rich. II c. 3 (1392). An 
excellent summary of the evolution of English and American statutory law and the struggle for jurisdiction 
between the Common Law judges and Admiralty is in Robertson, Admiralty and Federalism (1970) 28-64. For 
convenience, and because the details of that struggle are only peripherally interesting to this study, I have 
referred generally to "navigable waters" as the extent of Admiralty jurisdiction with specific details given 
only where pertinent to particular incidents or questions relating to the definition and treatment of 
"piracy." 

167. Cf. Sir William Scott in the Hercules [1819] 2 Dods. 363, 165 Eng. Rep. 1511 at p. 1517; 26 AJIL Spec. 
Supp. 910 (1932). 

168. On the origins and modern reflections of the Civil Law, see Nicholas, op. cit. note 55 above, p. 2; 
Admiralty actions based on the adjudication of property rights, actions in rem, trace back to Roman law, 
thus Civil Law, concepts. Id., p. 98-103. The experts in Civil Law in England were called "civilians," and 
sharp distinctions with elements of jealousy are evident in the attitudes of Common Law judges to the Civil 
Law and the civilians at this period. See Lord Coke's references in Palachie's Case (1615) translated in the 
text after note 194 below. 

169. 2 Marsden, Select Pleas, p. 84-86. 

170. Like Gentili (see text at note 93 above), Caesar was Italian by birth. He was the leading British 
Admiralty judge, 1584-1605. 3 Dictionary of National Biography (DNB) 656. 

171. 2 Marsden, Select Pleas, p. 161. Sir Julius simply recited as if proved that the vessel was "piratarum 
super alto mari infra jurisdictionem marittimam Admirallitatis Anglie." He did not define "pirate," or "high seas," 
or his conception of the Admiral's jurisdiction as it might have applied in the case. 

172. 1 Marsden, Documents, p. 298. The holding that "he is [et esse]" (lit.: "and be") a "pirate" seems 
unsupported by any reference to operative facts. It is not known why Marsden did not translate those two 
words in his transcription quoted here. 

173. Apparently the same person that had become notorious in English folk ballad at about this time. See 
text at note 76 above. 

174. 1 Marsden, Documents, pp. 373-373. 

175. Molloy, De Jure Maritimo (1677), Book I, ch. iv, para, xxi, p. 12. "Prohibited" meant that a legal writ 
of "prohibition" would issue from a Common Law court forbidding further Admiralty proceedings. The 
procedure was popularized in the struggles between the Common Law judges led by Sir Edward Coke and 
the prerogatives asserted by judges of other courts, of which there were many, in the early 17th century. 
The fullest and probably still most readable and accurate summary of the scope of authority of the various 
English courts of the time is Coke, Fourth Institute, cited at note 61 above. A "market overt" was merely a 
market in which merchants displayed their wares and sold them to any buyer. Originally defined to include 
only fairs and staples, by the end of the 18th century at the latest it included all the open shops in London all 
days except Sundays. The law permitting a merchant in a market overt to pass good title to stolen goods, 
including goods stolen by "pirates" (there seems to have been no distinction between goods stolen at sea or 
on land at the time the basic rule was reduced to statute in 21 Henry VIII c. 11 (1529)), was regarded as 
"calculated to answer the necessary ends and security of public commerce." 2 Wooddeson, A Systematical 
View of the Laws of England (1794) 431. The rule had an exception in the case of goods stolen either on land or 
at sea if the thief were actually caught or convicted. Id. p. 412. 

The statute of 1529 said: 

. . . That if any felon or felons hereafter do rob, or take away any money, goods, or chattels, from 
any of the King's subjects, from their persons or otherwise, within this realm, and thereof the said 
felon or felons be indicted . . . and found guilty therefor . . . that then the party so robbed, or owner, 
shall be restored to his said money, goods, and chattels. 

4 Pickering, op. cit., 175. Since the statute applies only to takings from the King's subjects, and only to 
takings within the realm, and neither Molloy nor Wooddeson gives any basis for his interpretation other 
than the statute itself for applying its terms to takings from foreign merchants anywhere, or from English 
subjects at sea, other than the rule in Justinian's Digest discussed in the text at notes 56-58 above, the precise 
evolution of the rule seems doubtful. One possible explanation is given in 1 Hale, The History of the Pleas of 
the Crown (1778 ed. by Sollom Emlyn) 542: "Tho the statute speaks of the king's subjects, it extends to aliens 
robbed; for tho they are not the king's natural-born subjects, they are the king's subjects, when in England, 
by local allegiance. " That still does not explain any application of the statute to goods "pirated" from any 
merchants, English or foreign, at sea. Wooddeson believed that it was a rule of English Common Law. 
Wooddeson, op. cit., p. 429. But the Common Law did not apply to offenses at sea. Wooddeson was the 
third Vinerian Professor of English Law at Oxford (Sir William Blackstone had been the first), and his 
lectures, published in 1792-94, were regarded by many as highly as the magisterial work of his more famous 
predecessor, Blackstone, the author of the Commentaries. See Chapter II text at note 152 sq. below. 



62 The Law of Piracy 

176. Molloy, op. cit., para. xx. The statute is 27 Edw. Ill statute 2 c. 13 (1353). Assuming Molloy's 
summary of the law reflected accurately the legal position in 1677, it is a bit confusing. The statute he cited 
is part of the famous Statute of the Staple. 2 Pickering, op. cit., 78 (1762). In Pickering's translation it says: 

13. Item, we will and grant, That if any merchant, privy or stranger, be robbed of his goods upon 
the sea, and the goods so robbed come into any ports within our realm and lands, and he will sue for 
to recover the said goods, he shall be received to prove the said goods to be his own by his marks, or 
by his chart or cocket, or by such good and lawful merchants, privy or strangers. (2) And by such 
proofs the same goods shall be delivered to the merchants, without making other suit at common 
law. 

Id., p. 87. The last sentence relates to the fact that the law of the staple was the Law Merchant, not the 
Common Law. Id., p. 92, 27 Edw. Ill 2 c. 22 (1353). It is noteworthy that the statute does not give any special 
favor to English merchants, but applies equally to merchants "strangers" (foreign) as to merchants "privy" 
(English). Molloy gives no citation to cases or statutes to explain the construction giving rights of recovery 
to English merchants that are withheld from foreigners. Of course, the word "piracy" does not appear in 
the statute of 1353. As noted in note 103 above, the word "marque" does appear in another chapter of the 
Statute of the Staple, c. 17, dated in the Oxford English Dictionary to 1354 instead of 1353 as in Pickering. 
The full text of that chapter illustrates the special care taken in England to safeguard the property rights of 
foreign merchants, and thus, impliedly, the erosion of that concern by the mid 17th century when Molloy 
was writing: 

Item, That no merchant-stranger be impeached for another's trepass, or for another's debt, 
whereof he is not debtor, pledge, nor mainpernour: (2) provided always, That if our liege people, 
merchants or other, be indamaged by any lords of strange lands or their subjects, we shall have the 
law of marque, and of taking them again, as hath been used in times past, without fraud or deceit. (3) And 
in case that debate do rise (which God defend) betweixt us and any lords of strange lands, we will 
not that the people and merchants of the said lands be suddenly subdued in our said realm and lands 
because of such debate, but that they be warned and proclamation thereof be published, that they 
shall void the said realm and lands with their goods freely, within forty days after the warning and 
proclamation so made . . . 

2 Pickering, op. cit., 89. The statute and the problems discussed in the text illustrate also the impossibility of 
maintaining private recapture under a theory of the Crown's internal responsibility without engaging the 
Crown's external responsibility; there is apparent a transition from letters of marque and reprisal as a way 
consistent with feudal law to avoid going to war on a "sovereign" level, to letters of marque and reprisal as 
an exercise of belligerent rights valid only on the "sovereign" (or public) level. See Clark, The English 
Practice with regard to Reprisals by Private Persons, 27 AJIL 694 (1933). A summary of this evolution, with 
citations useful to those interested in further study, can be found in Sohn & Buergenthal, International 
Protection of Human Rights (1973) 23-40. 

177. 1 Marsden, Documents, p. 388-394. The Privy Council extract is at note 1 on p. 394. Quaere if this is 
the same Newporte mentioned in Chamberlain, op. cit. note 73 above 34 (letter no. 61 dated 28 February 
1603) as having taken a treasure rumored to be worth 2 million pounds in Nombre de Dios and Cartagena. 

178. See text at note 86 above. 

179. 1 Marsden, Documents 224, from a recital in an unsigned opinion Marsden identifies as probably a 
copy of a 1579 legal memorandum from David Lewes, judge of Admiralty, to the Lord Admiral setting out 
the bases for the Admiral's legal authority. This is the earliest document found setting forth a basis for what 
later came to be asserted as "universal "jurisdiction in all countries to enforce their domestic laws against 
foreign "pirates" for their acts solely directed against foreign victims. That the roots of that concept lay in 
the municipal (English) law of "outlawry" and not in any international practice or Roman law, appears to 
have been forgotten by later writers and statesmen. See Chapter III below. 

180. 1 Marsden, Documents 173 note 1, paraphrasing "Instructions to Vice-Admirals of the coast" dated 
1563. 

181. Id., p. 216-217. 

182. Id., p. 217. 

183. Id., p. 218, setting out a sample commission. 

184. Id., p. 202-204. 

185. Id., p. 218 note by Marsden paraphrasing Burghley's letter. 

186. Id., p. 220-221. 

187. Id., p. 224-225. 

188. Id., p. 227-229. 

189. Id., p. 235-236. 

190. Id., p. 252. 



Origins 63 

191. After Elizabeth was succeeded by James I in 1601 there was a further tightening of the 
administration, and commissions to companies engaged in normal mercantile voyages in the Mediterranean 
or along the African coast began specifically to include authority to capture "pyrates." Id., p. 377-378 
(Commission dated 1609 from James to the Lord Admiral, Charles Earl of Notingham, authorizing him to 
allow ships of the Levant Company to take "anie pyraticall shipp . . . , of what nation soever, ... to bee 
tryed and proved by lawe and justice . . . and soe suffer the payne of our [sic] lawes for theire pyracie . . . "); 
p. 385-386 (Order of 1612 from Notingham to his staff to issue a commission to Humphrey Slaney "to resist 
and take such piratts and robbers att seas as shall piratically sett upon them ..." as they trade to "Guiney " 
(Guinea)). There is an implication that pirate-hunting in the absence of such a commission was 
unauthorized by English law, and an Englishman doing it might find himself in serious trouble at home 
whatever the strength of David Lewes's or Gentili's legal arguments about the nature of "piracy" at 
international law. By the end of the 17th century it seems to have been standard practice in England to 
require those who might encounter "pirates" to procure a license to capture them before setting out. See, 
e.g., the Warrant by Charles II (signed by Samuel Pepys) in 1684 authorizing "John Castel ... to seize and 
destroy all such pyrats, freebooters, and sea rovers, which he shall meet within the limits of [the Royal 
Affrican] companye's charter . . ."2Marsden, Documents 112-113. Apparently this authority did not extend 
to "pirates" outside the limits of the charter. When, in 1697, the East India Company found "pirates" of 
the Kidd and Every sort (see Chapter II note 91 sq. below) a serious threat to their trade, they petitioned the 
Lords Commissioners executing the office of the Lord High Admiral of England for a license "to seize and 
take all pyrates infesting those seas within the limits of the Company's charters." They asked at the same 
time for authority to set up an Admiralty tribunal "to trye and condemn such pyrates as they shall take." 
Id., 178-180. 

192. Id., p. 300, Proclamation of 1599. 

193. 1 Rolle 175 (1615), King's Bench, Easter Term. An English version sub nom. The King against March 
taken from 3 Bulstr. 27 is reproduced in 3 BILC 767-769. 

194. The captor was "Sam. Palachie." "Joseph Pallache" is mentioned in Fisher, op. cit., 175, as the 
Moroccan commander of an Atlantic fleet three of whose prizes reached England in 1614. Chamberlain, op. 
cit., 212-213 (letter no. 213 to Carleton dated 24 November 1614) refers to "a Jew pirate arrested that 
brought three prizes of Spaniards into Plymouth. He was set out by the King of Morocco, and useth 
Hollanders' ships and, for the most part, their mariners. But it is like he shall pass it over well enough, for he 
pretendeth to have leave and license under the King's hand for his free egress and regress ..." 

195. It is not clear whose words are thus reported by Rolle. Sir Edward Coke and Sir John Doddridge are 
identified by Rolle as members of the panel. Coke gives some details lacking in Rolle's more or less official 
report. Apparently the Spanish Ambassador had complained directly to the King's Council, which referred 
the case to the Chief Justice (Coke), the Master of the Rolls (Doddridge) and Sir Daniel Dun (judge of 
Admiralty). "And the said referees heard the Counsel learned both in the Common and Civil Laws, on both 
sides on two several days in this Term: and after conference between themselves, and with others, these 
points were resolved ..." Coke, Fourth Institute cap. XXVI at p. 152-154. 

196. The major doubts reported by Rolle were resolved in favor of Palachie on the basis of a precedent 
pronounced by Lord Popham in King's Bench, 1605, in which a Dutchman landing captured Spanish goods 
in England while England was at peace with both Holland and Spain, was supported. According to Coke's 
summary: "It was resolved by the whole Court of the King's Bench upon conference and deliberation, that 
the Spaniard had lost the property of the goods for ever, and had no remedy for them in England." Coke 
summarized the law: 

[H]e that will sue to have restitution of goods robbed at Sea, ought by Law to prove two things. 
First, that the Sovereign of the plaintiff was at the time of the taking in amity with the King of 
England. Secondly, that he that took the goods was at the time of the taking in amity with the 
Sovereign of him whose goods were taken: for if he which took them was in enmity with the 
Sovereign of him whose goods were taken, then it was no depredation or robbery, but a lawful 
taking, as every enemy might take of another . . . 

Coke, Fourth Institute 154. It seems significant that Coke does not mention commissions or letters of marque 
and reprisal to authorize the taking. 

197. The translation from the quaint law French of the time is mine. The English version reported in The 
King against Marsh and cited at note 193 above seems obscure in places and not to follow the original law 
French. The original is as follows: 

[Sam. Palachie, a subject of the] Roy de Moroccho, & pretend que il est Embassador de son Roy al United 
Provinces & sur le mere il prist un Spanish niefe (esteant guerre enter le Roy de Barbary & le Roy de Spain) &puis 
arrive ove ceo [avec qa ?] en Engleterre, & darrenment le Spanish Embassador prosecute anvers luy come un Pirat, & 
divers Civilians fuerunt commaund per le Roy a montre lour opinions de cest matter, lesqueur agree que un 
Embassador est priviledge per la ley de nature & Nations, mes sil commit alcun offence encontre la ley de nature ou 



64 The Law of Piracy 

reason, ilperdera son priviledge, mes nemy sil offend encountre un possitive ley d'alcun Relme come pur apparrel & c. 
Et divers auters questions fuerunt fails per les Civilians; mes quant jeo & alcunjustices al comen leyfuerunt demand 
pur notre opinions, ils disoint que les Civilians fuerunt beside le matter, car cestuy que est desire trie icy pur piracie est 
destre trie surl'estatute de 28 H.8cap. /blank space in text] que dit que serra trie pur piracie come pur felonie fait 
sur le terre al comen ley, &pur ceo nest piracie nisi ad estre felonie si mesme lefact ad estre commit sur le terre, mes en 
cest case ceo n'ad estre felonie si ad estre commit sur le terre [sic] car est loyall pur un enemie a prender de 
Tauter, & accordant a notre opinions fuit rule accordant, & 2 R[ichardj 3.2. est que si alcun voilt 
prosecutre vers auter sur 21 E[dwa.vd] 3 cap. 13. il que est robbe doit proover que il mesme fuit de amicitia Domini 
Regis, & que cestuy que luy spoliavit fuit sub obedientia Domini Regis vel de amicitia, car si fuit inimicus nonfuit 
spoliatio sedlegalis captio. Des en Palachies Case fuit agree per les Civilians que V Embassador poet proceeder vers 
luy civillieper les biens icy pur ceo que ils sont en solo amici, (R. Quaere ceo car semble que per la ley de nations un 
enemie poet loyalment prender de V auter) Dod. est un reprisell en le Register, Coke ceo estfo. 87. si biens ne sont 
restore que sont illoyalment prise per subject d' auter Roy donque le Roy grantera ceo. Etper Coke & Dod. home ne 
poet estre pendus pur piracie sur un robberie fait sur le Thames car ceo est infra corpus comitatus. 

The statute of 27 Edward III cap. 13 cited in the case is undoubtedly the part of the Statute of the Staple 
quoted at note 176 above, 27 Edw. Ill 2 cap. 13. There does not appear to be any language in the statute to 
support Coke's assertion that a merchant claiming rights under it must prove that he comes from a "friend" 
of the King and that he who robbed him was within the "obedience "of the king or one of his royal friends. 
The statute 21 Henry VIII c. 11 (1529) quoted in note 175 above was interpreted this way, as the lawyers 
apparently sought to make absolute sense of Common Law interpretations that had grown up without a 
clear statutory base. 

The citation to 2 R. 3.2 is very confusing. Pickering's compilation, the more or less standard Statutes at 
Large, does not give any enactments at all for the second year of the reign of Richard III (1484). None from 
the prior year seems even remotely relevant. The statute 1 Henry VII c. 2 (1485) relates to foreign merchant 
"denizens" in England, removing from them an exemption from customs duties that had been granted in 
various earlier letters patent and other documents, alleging abuses by which non-denizen foreign 
merchants were underselling English merchants by evading the customs duties. It looks like simple 
protective legislation favoring an important English constituency, irrelevant to the subject. 4 Pickering, op. 
cit. , 526. It was ch. 13 of the Statute of the Staple that gave foreign merchants the legal right to use English 
courts, and Coke's interpretation seems merely to reflect a Common Law gloss on its meaning. 

Another, quite different statute, seems relevant although not cited by Coke: 14 Edward III st. 2 cap. 2 (1340): 

Also whereas it is contained in the Great Charter [c. 30] that all Merchants shall have safe and sure 
Conduct to go out of our Realm of England, and there to come and abide . . .; We . . . will and grant 
. . . That all Merchants, Denizens and Foreigners (except those which be of our Enmity), may 
without Let safely come . . ., paying the Customs, Subsidies, and other Profits reasonably thereof 
due . . . [Et come y soit contenuz en la Grande Charte qe toutz marchantz eient sauve et seure conduyt daler hors de 
nostre roialme d'Engleterre . . .; Nous . . . volons et grantons . . . qe touz marchantz denezeins et foreins, forspris 
ceux qe sont de nostre enemite, puissent sanz estre destourbe sauvement venir en ledit roialme . . .] 

1 Pickering, op. cit., 508. But this statute relates to coming and going, not to access to the courts. It is, of 
course, possible to speculate that if an "enemy" merchant had no legal basis for coming to England in this 
statute, he could not legally appear in any guise before an English court; that his only right at English law as 
an enemy alien would be to depart safely within a time fixed by English law. But that would be to attribute 
to Coke a logic that he does not himself state. 

198. 1 Rolle 285 (1615), King's Bench, Hilary Term. 

199. Hildebrand, Brimston, & Baker fueront sue en Admiraltie Court, le case fuet tiel, ceux homes fueront owners d'un 
neife, & ceo mist al Indies a merchandiser, & sur le alt mere les Mariners, & rendue commit Piracie (come est suppose en 
L 'admiraltie Court) & quant le neife return icy sur le Thames L 'admiral seise le neife, & tout en ceo come bona Piratarium 
clamant eux per le grant del'Royne, & les Marchants prisont les sailes & tackling hors del' neife, & pur ceo est le suite en le 
Admiraltie Court. Covent. praie un Prohibition al Cour sur cest matter. Coke est voier que le Admiraltie ad per le grand [sic; 
grant?] del'Royn bona Piratarium, hoc est les proper biens de Pirats, mes il navera per ceo les biens que les Pirats emblee 
d'auter homes, car ceux ne sont destre grant, carl'owners doint eux aver arare [?], & si L 'admiraltie duissoit aver eux ancor il 
ne doit suer la pur eux esteant prise intra corpus Comitatus, scilicer, sur Thames. Dod. si home borrow un chivall, & sur ceo 
commit un robberie uncose le chivall n'est forfet, ac icy le neife n 'est forfeit [sic] pur le piracie de ceux que fueront deins le 
neife, quod fuit concessumper Coke, & il demand de Covent. an ils fueront convict del'Piracie, que dit que nemy. Et 
Prohibition fuit grant pur ceo que le prisall suit infra corpus Comitatus. 

200. Coke, Third Institute, Cap. XLIX, p. 111. 

201. Id., p. 113: 

Before the statute of 25 E. 3, if a subject had committed Piracy upon another . . . this was holden to 
be petit Treason, for which he was to be drawn and hanged: because Pirata est hostis humani generis, 



Origins 65 

and it was contra ligeanciae suae debitum: but if an Alien, as one of the Normans, who had revolted in the 
reign of King John, had committed Piracy [sic. Coke obviously means "what would otherwise be 
piracy"] upon a subject, this offence could be no Treason, for though he were hostis humani generis , 
yet the crime was not contra ligeanciae suae debitum, because the offender was no subject, but since the 
statute of 25 E. 3, this is no Treason in case of a subject. 

The Statute of 25 Edw. Ill referred to by Coke is the Statute of Purveyors (tax collectors), statute 5 of that 
year (1352) (2 Pickering, op. cit., 49), chapter 2 of which has come down to us as the "Statute of Treasons" 
cited at note 134 above. By this statute, earlier uses of the word "treason" in law were superseded, and a list 
of exclusive definitions was given: 

When a man doth compass or imagine the death of our lord the King or of our Lady the Queen, or 
their eldest son and heir ... or if a man do levy war against our Lord the King in his realm, or be 
adherent to the King's enemies in his realm giving them aid and comfort in the realm, or elsewhere 
...[... quant homme fait compasser ou imaginer la mort nostre seignur le Roi ma dame sa compaigne ou de lour 
fitz primer & heir . . . & si homme leve de guerre contre nostre dit seignur le Roi en son roialme ou soit adherent as 
[sic; adherant aux?] enemys nostre seignur le Roi en le roialme donant a eux eid ou confort en son roialme ou par 
aillours . . .] 

The statute goes on to call "treason" the violation of feudal or common law obligations owed to lesser 
mortals also: 

And moreover there is another manner of treason, that is to say, when a servant slayeth his master, 
or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth 
faith and obedience . . . [Et ovesque ceo il y ad autre manere de treson cest assavoir quant un servant tue don 
[son?] meistre une femme qe tue son baron quant homme seculer ou de religion tue son prelat a qi il 
doit foi & obedience . . . ] 

The former was eventually called "high treason;" the latter "petty treason. "2 Pickering, op. cit., 51-55. 

202. See below at Chapter II note 11-45 sq. 

203. Southern v. Howe, 2 Rolle 5 (1617): "Auri icy nest alcun loyal dampnification al Plaintiff, carilfuit imprison 
mes null loyal proceeding fuit ewe vers luy, mes solment ilfuit compell per force d'un barbarous Roy, & donque il doet suerper 
Petition ..." There were other grounds for the decision, such as the rule caveat emptor (let the buyer beware), 
under which Howe and his servant did no legal wrong to the King of Barbary, and thus could not be 
compelled to bow before the foreign law under which the fraud (at least when worked against the king) 
would nullify the deal. But this is not the place to trace the development of English rules of conflict of laws 
or the law of fraud. 

204. Again, as so often in this study, an interesting side-track must be resisted. For a full understanding of 
the background against which the classification of the "King of Barbary " as a king and nothing else (he was 
not argued to be a "pirate" as far as appears from Rolle 's report of Southerne v. Howe) a full course in 
English commercial, criminal and constitutional law of the early 17th century would be necessary. 



66 



II 

The Evolution of the Concept of Piracy 

in England 

English Law and International Law 

It was noted above that three fundamentally different conceptions of 
"piracy" gained currency during the 16th century among statesmen and 
jurists. One, put forth by Grotius, involved attaching the label "pirate" to 
armed bands or individuals whose primary object was plunder regardless of 
place. Its legal result, derived from the ancient Roman law dealing with the 
extension of Roman criminal jurisdiction to cover the acts of foreign 
"latrones" or "praedones" within the Empire, including its seas, was suppression 
at the whim of the state and trial of those captured under the municipal law of 
the captors. Another, urged by Gentili, incorporated the same results, but, 
instead of flowing from facts more or less objectively determined, flowed 
from political decisions of the decision-makers in each society as to what 
labeling system would best suit their needs, and achieved the legal and 
political results they preferred as a result of their choice of labels. The third 
involved the incorporation of the word "pirate" into municipal law and in 
England involved the application of the word and whatever legal results were 
determined to flow from it as a matter of English municipal law by the 
civilians in Admiralty, the Common Law judges of the King's Bench, and, 
presumably, whatever was formally decided by the body with legislative 
authority outside of the complex legislative competence extended to judges 
in the guise oi "discovering" the Common Law or Civil Law in English 
courts. 

Where the Grotian and Gentili approaches either presumed the existence 
of a world state analogous to Rome, and thus saw no limit to municipal law 
territorial jurisdiction, or saw the world divided into separate sovereignties 
with "privateers" or even whole communities deriving their authority to act 
against strangers from a distribution of legal powers within the overall 
system, the Common Law judges in England thought municipal concepts of 
jurisdiction the essence of the situation and traced jurisdiction to the legal 
powers of the sovereign in England over his subjects and his territory. The 
English Admiralty judges thought of "piracy" as a word of art in English law 
that was useful in questions o£ property rights primarily; to dispose of the 



Evolution in England 67 

claim to title that might be presented by a "privateer" licensed by a foreign 
sovereign in the case of goods recaptured by an English privateer claiming 
salvage from the original owner or claiming the full rights of property against 
an "owner" whose "rights" derived from foreign "privateers" or "pirates. " 
The administrators of England thought of "piracy" as a word to cover 
mutinies and other shipboard violence within the jurisdiction of the 
administrator, the Admiral, whose perquisites of office included a share of the 
profits of litigation and whose relationship to royal favor could be used as a 
counterweight to the independent Common Law courts. The Common Law 
judges thought of "piracy" as a special Admiralty word whose precise 
meaning could be developed by civilians, but which bore some relationship to 
petty treason and shipboard authority. The Acts of 1535 and 1536 placed 
Common Law judges and both Common and Civil Law trained administrators 
on the tribunals that had thitherto been dominated by civilians. The result was 
a reconsideration of all the basic rules and concepts, worked out in a series of 
cases with major constitutional implications in England because involving the 
distribution of legal powers between the Crown and the Common Law career 
judges and, in the case of the actions of the East India Company and other 
chartered organizations, the struggle between the Crown and Parliament for 
control of the profits of overseas activities by English bodies corporate. 

Among the first things to fall was the notion adopted by Coke and Hale that 
"piracy" was a kind of petty treason; it fell with a political struggle, but with 
little analysis of the underlying jurisdictional and definitional questions. To 
understand the shift of meaning occurring at the end of the 17th century in the 
context of the political pressures involved in maintaining the fruits of the 
Glorious Revolution of 1688 despite efforts both on land and sea by the 
deposed James II and his French ally, Louis XIV, it is necessary first to 
consider some of the evolution of thought by civil lawyers as the naturalism of 
Grotius and the positivism of Gentili began to affect their conceptions of 
national jurisdiction in an age of expanding foreign trade. 

As English commerce expanded, it first became important to come to grips 
with the question of the legal classification best fitted to unrecognized or 
unpleasant states and rebels with real military power. Gentili's experience 
showed that the asserted freedom of statesmen and lawyers to attach such 
labels as suited their needs was in fact limited by reality and the needs of stable 
commerce, if stable commerce were considered a value to be protected by the 
law and reality was important to the state whose merchants engaged in it. The 
position was well stated by Sir Leoline Jenkins, Privy Councillor to King 
Charles II, in a letter to the King dated 11 February 1680, concerning title to a 
British ship taken by an Algerine warship and then wrecked on the coast of 
Ireland. The technical question was whether the Muslim members of the 
ship's company should be treated as pirates and hanged, or as honorable 
soldiers. There had been no declaration of war between England and Algiers 



68 The Law of Piracy 

effective at the time. Jenkins, a civilian who had served with distinction as a 
judge in the Admiralty courts and was reputed one of the most influential 
jurists in England, 1 took an eclectic approach: 

As for the Moors and Turks that are so by birth, and were found bn board . . . since the 
Government of Algiers is owned as well by several Treaties of Peace and Declarations of 
War, as by the Establishment of Trade, and even of Consuls and Residents among them 
by so many Princes and States, and particularly by your Majesty; they cannot ... be 
proceeded against as Pirates . . . but are to have the Privileges of Enemies in an open 
War. 2 

His conclusion was thus based not only on convenience and policy as 
evidenced by consistent European practice and British consular practice, but 
also on an examination of what classification would best fit the facts more or 
less objectively determined. The policy arguments that might have been 
urged by an advocate like Gentili are not raised: There is no mention of the 
fact that Englishmen caught without license in Algiers or in English ships 
captured by Algerian raiders were enslaved at this time; and no policy 
argument based on the apprehension of reciprocal mistreatment or reprisals 
by Algiers against the English trading community there. Nor is there any 
doubt cast on the validity in England of a license or commission issued by the 
Dey; the question does not seem to have arisen. 

Confirming this approach to the question of how to treat the Barbary states 
the great Dutch jurist of fifty years later, Cornelius Bynkershoek, used the 
same logic to come to the same conclusion: 

... I do not think that we can reasonably agree with Alberico Gentili and others who 
class as pirates the so-called Barbary peoples of Africa, and that captures made by them 
entail no change in property. The peoples of Algiers, Tripoli, Tunis and Salee are not 
pirates, but rather organized states, which have a fixed territory in which there is an 
established government, and with which, as with other nations, we are now at peace, 
now at war. Hence they seem to be entitled to the rights of independent states. The 
States-General [of the Netherlands], as well as other nations, have frequently made 
treaties with them . . . . 3 

As a practical matter, this resolution of the question of theory with regard 
to attaching the label "pirates" and its legal results facilitated the removal of 
the question from the policy arms of government in England to the courts. A 
more or less objective standard based on British (or Dutch) official behavior 
as a symbol of acquiescence and convenience, and on facts, was fixed in these 
opinions. Judges, whose training and constitutional place in municipal law 
made them conceive of their function as that of applying the law, given 
elsewhere, to facts presented as pertinent to established prescriptions of law 
and procedure, could determine who was a "pirate" and who a licensed 
"privateer" or commissioner of a Prince without the case by case referral to 
the Crown that Gentili's approach. would have required. The standard was 
also much more coherent than the high policy decision that was proposed by 
Grotius, which involved some kind of determination as to the purpose of the 



Evolution in England 69 

foundation of the society purporting to license raiders. Instead, it found the 
authority to license raiders in evidence of how the society in question was 
treated by England in other matters and, in default of English precedent, how 
that society was treated by other actors in the European state system. While 
this approach was still far from certain and allowed a substantial measure of 
subjectivity when dealing, for example, with rebels or non-European 
"states" whose relations to any European "state" were ambiguous or 
negligible in quantity, in practice the questions could be handled with 
substantial ease within the normal processes of English municipal law. 

Commissions: Privateers as "Pirates"; Positivism Rampant and 
Naturalism Resurgent in the 1690s 

In 1688 King James had been forced to abdicate the English throne and flee 
to France and then to Ireland. There he issued commissions to privateers to 
raid English shipping, regarding the new government of William of Orange 
and Mary, the eldest daughter of James, as usurpers. Eight of his privateers 
were caught and in about July 1692 the Lords of William and Mary's Privy 
Council resolved that they should be tried by an appropriate tribunal as 
"pirates." That November the Lords of the Admiralty ordered Dr. William 
Oldys, the King's Advocate of the Admiralty, 4 to proceed against them on 
that charge. Oldys refused on the ground that their acts as commissioners 
even of a deposed King did not constitute "piracy" as he understood the term. 
The conclusion of the civil lawyers whom Oldys consulted 5 agreed with this 
except for Dr. Littleton (about whom very little seems to be known other 
than that he succeeded Oldys as Admiralty Advocate at the conclusion of the 
episode now being recited) and Matthew Tindall. 6 On 20 May 1693, the 
following opinion was formally presented by the civilians of Doctors' 
Commons to the Admiralty Board on the question, "Whether Their 
Majesties' subjects serving under the late King James' commission ought not 
to be prosecuted as pyrats": 

Tho. Pinfold: They are not in law pyrates, nor ought to be prosecuted as such, as I 



conceive. 



Wm. Oldys: I am of the same opinion. 

Matt. Tindall: None can grant commissions for private men of war but they that have 

summum imperium, or a power of making peace and war for some state 
or nation. That the late King James, by having justly lost his kingdom, 
and being in the dominion and power of another, has not only lost the 
power of making peace and war, but without his [?] consent has not the 
power or freedome to send to or receive or protect the persons of any 
that are sent to him with a publick character to treat about peace or 
war, and is reduced to the state and condition of a private person. For 
he that has no government, nor a right to any, and also [is] in the power 



70 The Law of Piracy 

of another, cannot but be a private person, and has no right to grant 
commissions to disturb the trade and commerce of a nation (with 
whom too he has no war); and those taken serving under his 
commission are to be dealt with as if they had no commission, and 
being subjects of their Majesties, are incapable to receive any 
commission to fight against their fellow subjects, though granted by 
a just authority, and, in my opinion, may be by the law of nations 
prosecuted as pirates. 

Rt. Walton: I am of the opinion that by the law of nations no persons who act in the 

prosecution of an open war, and against some particular enemies only, 
are to be esteemed pirates. A pirate being such an one as commits acts 
of hostility against all men without distinction, and without the 
solemnities of war .... 

Wm. Oldys: This was agreed on by all the King's Councell, both common and civill, 

that in case their opinions were required, whether it were advisable 
that these prisoners should be prosecuted for treason or pyracy, their 
opinions were in the negative, thinking it no ways advisable, and 
desired me to intimate as much to this honorable Board. 

F. Littleton: I am of the opinion that their Majesties' subjects taken fighting under 

the late King James, his commission, against others their Majesties' 
subjects upon the high seas may be prosecuted as pyrates. 7 

In September 1693, Dr. Oldys was summoned before the Cabinet Council 
composed of the Lords of the Admiralty, the Earls of Nottingham, 
Devonshire and Pembroke, and Sir John Trenchard. 8 Trenchard questioned 
Dr. Oldys about his opinion: 

Dr. Oldish: 9 Pirates are common enemies to all mankind, having no legal authority 

for what they do; but they shew a commission signed J. R. [Jacobus Rex 
(James the King)] dated at the court of St. Germaine's, together with 
articles and instructions annexed, in the same form as privateers have, 
giving caution and security to bring prizes, and judgment into the 
Court of Admiralty, before Thomas Shadford, at Brest, or elsewhere: 
this does no way agree with piracy, or the character of a pirate, who is a 
robber, and has thereby lost his right in the law of nations. 

Sec. Trenchard: But king James has lost his sovereignty, in that he has parted with his 
crown, and consequently with the power of granting such commissions. 

Dr. Oldish: A king may be deposed of his crown, but cannot lose his right. So says 

Grotius, 'Jus regis penes ipsius manet, utcunque possessionem amiserit. ' 
A king, therefore, in case he be deposed of his kingdom by the law, he 
has a right to war, and if so, he has all the ways and consequences of 
war, amongst the rest, pignorations and reprisals, which is a power of 
granting letters of mart [sic] and reprisal. 

Sec. Trenchard: This may be law, in case where the king is deposed; but what if the king 
abdicates? 



Dr. Oldish: 



Sec. Trenchard: 



Dr. Oldish: 



Lord Devon: 



Evolution in England 71 

If he did really abdicate, as did the emperor Charles the fifth, or the 
queen of Sweden, then he is no other than a private person, and cannot 
legally grant any commission. But whether a privateer, acting by 
commission granted him de facto by king James, not knowing that he had 
abdicated, whether such an error will excuse a poena delicti! For that a 
reputable power is equivalent to a real one in such a case. 

To clear this, doctor, we must examine the circumstances of the case, 
and see if they be such as may occasion and induce a common error, 
whereby many may be deceived, as well as privateers. 

It is notorious to us, and all the world, that king James was once a 
lawful king, and acknowledged by us, and all the world, to be so; that 
when his army deserted him, he fled to his ally in France for aid; then he 
went into Ireland to recover his kingdoms, as his declaration sets forth; 
there he grants commissions: those who fought under those commis- 
sions, and were taken, were not used as thieves and robbers, but as 
prisoners of war; whereby his claim seemed to be allowed by his very 
enemies; and those persons who acted under him in Ireland were 
treated as enemies, not rogues, though they acted under no king but 
king James, and by his command; that upon their return to France, they 
repaired to king James, their king, and thought him as well impowered 
to grant commissions by sea as land, and upon receipt of commissions 
from him, came out 'animo hostili, ' as privateers, 'non animo furandi, ' 
as pirates: That a colourable authority remaining in king James, will 
excuse those who acted under him from being pirates, since the 
abdication was never published, nor so much as heard of in France; and 
since in piracy, which deserves 'ultimum supplicium,' if proved, all 
favourable allowance ought to be made, and a general acknowledge- 
ment of a false authority in another country (where the commissions 
were taken) will free them from a felonious intent in taking them, and 
consequently from piracy; for so it is, that king James is owned and 
reputed a king in France; and therefore in this case it is undoubted law, 
'Communis error facit jus.' 

What if Tourville should grant such commissions to any Englishman, 
were they not pirates who acted under him? 



Dr. Oldish: 



No, even the power of granting such commissions being excepted in his 
patent, yet by common intendment, as admiral, he can grant such 
commissions; and as it is not to be presumed, that private men should 
look into his patent, so neither ought they to suffer for not having seen 
it; it is sufficient for them, that he is reputed to have such power. 



Lord Devon: What if monsieur Pompone, or any other minister of state, should grant 

such commissions? 



Dr. Oldish: 



Why then it would not be good; for by common presumption, a 
secretary of state would not grant such commissions, that power being 
proper only to the admiral. 



72 The Law of Piracy 



Sec. Trenchard, 
and Lord 
Faulkland, in the 
great heat: 



I — pray, doctor, let us deal more closely with you, for your reasons are 
such as amount to high treason. Pray, what do you think of the 
Abdication? 



Dr. Oldish: 



That is an odious, ensnaring question; however it may be, I think of the 
abdication as you do; for since it is voted, it binds at least in England; 
but those gentlemen were in a foreign country, and knew nothing of it; 
and though king James be not king here, yet the colour of authority 
remaining, and common reputation of him as king there, excuses them, 
as I said before. 



Sec. Trenchard: What say you of the pirates under Anthony, King of Portugal? 

Dr. Oldish: As to the case of the Frenchmen, under Anthony, king of Portugal, the 

book says, 'Traciati sunt non quasi justi hostes, sed quasi pirati qui sub Antonio 
militant;' and the difference of this case appears in the reason of it: For 
there the Spaniards never owned Anthony as king; here it is quite 
otherwise, for king James was really and truly a king, owned by us, and 
all the world. 

Sir Thomas Pinfold being asked what he had to say, declared himself of the same opinion. Dr. 
Newton and Dr. Walker, 10 did not deliver their opinions, but desired time to consider of it. 
Dr. Newton said, it was against his conscience to have a hand in blood. 

Dr. Littleton said, That king James now was a private person; we had no war with him, nor he 
with us; or if he designed to have any, Aerarium non habet, he is not in a capacity of making 
war, he can neither send nor receive ambassadors; and those who adhere to him, are not 
enemies, but rogues, and consequently those persons are not privateers, but pirates. 

Dr. Tindall was of the same opinion with Dr. Littleton. 

Dr. Oldish hereupon was removed from his place of king's advocate, and Dr. Littleton 
succeeded him, who tried the persons, and condemned them. 11 

Tindall, in an Essay Concerning the Law of Nations considered this entire 
episode from his own point of view and added some further details. 
According to Tindall, after Oldys had made his telling point that those who 
followed the deposed King James II on land in Ireland were treated as 
enemies, not as criminals, by the English victors, 

One of the Lords then demanded of him [i.e., Oldys], if any of their majesties' subjects, 
by virtue of a commission from the late king, should by force seize the goods of their 
fellow-subjects by land, whether that would excuse them from being guilty at least o{ 
robbery? If it would not from robbery, why should it more excuse them from piracy? To 
which he made no reply. 12 

A variant of the same point was addressed to Sir Thomas Pinfold and Oldys 
both: 



Evolution in England 73 

Whether it were not treason in their majesties' subjects, to accept a commission from 
the late king, to act in a hostile manner against their own nation? Which they both 
owned it was (and Sir Thomas Pinfold has since, as I am informed, given it under his 
hand, that they are traitors). The Lords further asked them, if the seizing the ships and 
goods of their majesties' subjects were treason, why they would not allow it to be 
piracy? Because piracy was nothing else but seizing the ships and goods by no 
commission; or what was all one, by a void or null one; and said, that there could be no 
commission to commit treason, but what must be so: To which they had nothing to 
reply. 13 

It thus seems clear that to the Lords of the Admiralty and Council, "piracy" 
had retained some of the "treason" implications of Coke's analysis of some 60 
years before: A word that could be attached to "traitors. " The legal effect in 
a high treason case, as distinct from petty treason under Coke's analysis, was 
to substitute a trial by special Commission under the statute of 1536 14 for the 
trial by the House of Lords or other less malleable court required by an 
accusation of high treason. This possibly cynical and extreme view of the 
utility of legal categories was apparently more than Tindall himself was 
willing to affirm, although he did not dispute it and represented Oldys and 
Pinfold standing mute before the Lords' argumentation. Tindall seems to have 
adopted entirely the position given by Sir Leoline Jenkins a generation earlier: 
That it was a matter of national discretion whose licenses to acknowledge, 
and that any taking not authorized by a license issued by an acknowledged 
"sovereign" could properly be called "piracy" at English law, and be visited 
with the legal procedures and punishment fitting that charge in England. 

It does appear that by Tindall 's and the Lords' analysis, only English people 
without a valid commission were precluded from asserting belligerent rights 
(as privateers) against other English people. The equation of "piracy" with 
"treason" rested on the notion that the accused criminal must be bound in 
loyalty to the government of England; that "piracy" could be the charge that 
flowed from a breach of that loyalty. Since foreigners not "denizens," 
habitually resident in England, are not so bound, the question was left open as 
to whether "piracy" could exist where there was no "treason," and the 
similar but easier question was posed, whether an Englishman could accept a 
commission from a foreign acknowledged sovereign to act against 
Englishmen. 15 

To the first of these questions, Tindall replied by reviewing the story of 
Dom Antonio and the Frenchmen with commissions from the French king 
who were executed as pirates by Spain. 16 

As to the story of Antonio, the doctor [Oldys] is (to suppose no worse) abominally 
mistaken in the very foundation. ... It was the royal navy of France (which is very 
improbable did act by any authority but that of the French king's) set out . . . 'regis sub 
auspiciis,' with which the Spanish fleet engaged, and had the good fortune, after a long 
and bloody fight, to route it, and took above five hundred prisoners, of which almost the 
fifth part were persons of quality, whom the Spanish admiral was resolved to sacrifice as 
pirates, because the French king, without declaring war, had sent them to the assistance 



74 The Law of Piracy 

of Antonio: Against which proceedings the officers of the Spanish fleet murmured, and 
represented to their admiral, that they were not pirates because they had the French 
king's commission; but that they chiefly insisted on, was the ill consequence it would be 
to themselves, who, if they fell into the hands of the French, must expect the same usage. 
As to the French king's assisting Antonio without declaring war, they supposed, that 
before the sea fight, the two crowns might be said to be in a state of war, by reason of 
frequent engagements they had in the Low Countries. . . , 17 

Tindall then compared the legal position of Antonio with that of James after 
his abdication, finding that while the fighting was still going on the Spaniards 
allowed Antonio the same privileges on land as the English allowed to James 
in Ireland despite both Spain and England denying the royal prerogatives of 
the respective claimants to authority. He then treated the Spanish 
condemnation of French officers as illustrative precedent: 

And if the Spaniards, by the law of nations, after Antonio was driven from his kingdom, 
might treat those that acted by his commission as pirates, why may not the English deal 
after the same manner with those that act by the late king's commission, since they look 
on him to be in the same condition as the Spaniards did on Antonio, without a kingdom, 
or right to one? 18 

From this careful phrasing, it seems that Tindall did not excuse the Spanish 
action insofar as it resulted in treating as pirates Frenchmen who held French 
commissions. Rather, he adopted the argument put forth by the Spanish fleet, 
that reasons of reciprocity and the factual existence of fighting in which 
either side's adherents might fall into the hands of the other compel a legal 
classification that gives protection to honorable soldiers fighting within the 
system; that that protection is lifted only when they remove themselves from 
the system by accepting a commission from a person not authorized under the 
system as perceived by the capturing authorities to give it. 

In fact, the case of the eight Irish "pirates" was far more complex than 
appears from these discussions. It was alleged in the appeals petition of the 
eight to the House of Lords after they had been tried and condemned as 
"Pirates and Traitors" that they were all natives of Ireland and never left 
their allegiance to King James; that by the Statute of Treasons 19 conviction 
can only be had by judgment of the King in Parliament; that they had a right 
to jury trial. Two of the petitioners, John Golding and Thomas Jones, argued 
that their commissions had in fact been issued with the consent of King James 
by the King of France. All averred that they had never come into any 
allegiance with the English government of William and Mary, thus cannot 
have committed treason against it. In their view King James, although 
defeated in his rightful territories, was still a King and ally of King Louis XIV 
of France: "That king James and the king of France being confederated 
together in war against England, it matters not in the judgment of the law of 
nations, under which of the confederates commission the subjects of either 
act;" they should be treated as land soldiers were and might yet again be 



Evolution in England 75 

treated in Ireland, as honorable prisoners of war. 20 This argument, implying 
sound policy reasons for applying the laws of war to "rebels" (or "loyalists," 
depending on whether Parliament or the king is regarded as the sovereign in 
England), shows how the Gentili-positivist approach could still be applied to 
reach the same practical result as the Grotius-naturalist arguments. Why one 
argument is more persuasive than another when both rest on the same 
jurisprudential premises is a matter of psychology and sociology more than 
logic, and it is not fruitful for present purposes to pursue this point further. 21 
It is difficult to unearth at this remove in time the reasons why the very 
broad authority under the statute of 1536 to try "treasons" as well as 
"piracies" was not conceived in 1693 to make it unnecessary to charge the 
eight privateers with "piracy." There seem to be two likely explanations. 
One, resting on a technical reading of the Statute of Treasons, 22 involves the 
possible desire of the prosecuting authorities and the Privy Council to avoid 
the distinctions between the person of the sovereign and his realm on the one 
side and the constitution of the state on the other as protected by the terms of 
the statute. Nobody pretended at that time that King James II and his 
supporters aimed to slaughter William of Orange or Queen Mary, the eldest 
daughter of James and the wife of William, who had been placed on the 
throne of England by actions in Parliament that were inconceivable in 1352, 
when the Statute of Treasons was enacted. The more likely explanation is 
that by the 1690s, about 150 years after the statute of 1536 had been enacted, 
the idea that its purpose had been to provide tribunals to consider cases 
peculiar to Admiralty jurisdiction, of which "high" treason was not one, had 
become rooted in common thought among lawyers. Coke, writing before 
1634, had begun his chapter on matters covered by the statute of 1536 by 
referring only to "Piracy, Felonies, Robberies, Murders, and Confederacies 
committed in or upon the Sea, & c. " 23 He then quoted the statute, including its 
word "Treason," but in his gloss upon its meaning concluded, in the light of 
the historical interpretation of the Statute of Treasons, and the clarifying 
statute 35 Henry VIII c.2 (1543), 24 that "it [treason] wanted trial, (as by the 
preamble of this statute is rehearsed) at the Common Law." 25 Moreover, 
Coke raised a rather subtle technical difficulty when he concluded that after 
the Statute of Treasons, the robbery of an Englishman by an Englishman, 
which might have been "petit Treason" before, warranting the offender to be 
"drawn and hanged," could no longer be considered treason. 26 Coke was 
innocent of an uncharacteristically anachronistic reference to "Piracy" as a 
discrete concept as of 1352 or earlier, when using the word to mean merely 
"robbery within the jurisdiction of the Admiralty," as was apparently the 
point of the statute of 1536, but he seems to have been alleging a gap between 
the jurisdiction of the Common Law courts and the commissioners in 
Admiralty under the statute of 1536 in the case of "piracies" committed by 
those Englishmen who, for some reason, perhaps involving the technicalities 



76 The Law of Piracy 

of the laws of feudal allegiance, were not acting contra ligeanciea suae debitum, 
against their obligations of loyalty. These are questions that by 1693 it might 
well have seemed better to leave unraised. 

On the other hand, the solution found in the case of the eight Irish 
commissioners was clearly unsatisfactory, and in 1695 a statute was passed 
bringing "treason" directly into the Common Law procedures similar to the 
procedures envisaged by the act of 1536. 27 A Commission sat at the Old Bailey 
in 1696 to try Captain Thomas Vaughan under this statute, for treason. 28 The 
facts are very like the facts in the case of the eight Irish commissioners, but 
Vaughan was not accused of "piracy"; only of "treason" under the Act of 
1352. The statutes of 1536 and 1695 were taken to permit a treason trial before 
an Admiralty tribunal. The case was considered important and the judges of 
the tribunal included Sir Charles Hedges (judge of the high court of 
Admiralty), Lord Chief Justice Sir John Holt (King's Bench), Lord Chief 
Justice Sir George Treby (Common Pleas), Lord Chief Baron Edward Ward 
(Exchequer), Sir John Turton (Justice of King's Bench) and others. Dr. Oldys 
appears in a minor role as one of the court's advisers on Civil Law. 

Being a treason trial, the principal point of contention was the nationality 
of the defendant, who asserted himself to have been born in the French island 
of "Martinico" and thus a Frenchman for purposes of receiving a privateer's 
commission from King Louis XIV. Other evidence, which the jury found 
more convincing, tended to establish that he was Irish, thus within the 
"ligeance" of the crown of England. Conflicts of allegiance, and the idea of 
dual nationality, which had not been strange to Coke in contemplating the 
relations of French subjects of King John to English subjects and to King John 
himself, 29 were not discussed. But the issue of whether a commissioner could 
be a "pirate" did. Vaughan was accused of sailing with French subjects during 
a war between France and England. It then appeared that his crew was in the 
main Dutch (thus, apparently, subjects of William III as Prince of Orange) 
not French. Lord Chief Justice Holt questioned Mr. Phipps, Vaughan 's 
defense attorney: 

L.CJ. If Dutchmen turn rebels to the state, and take pay of the French king, they are 
under the French king's command, and so are his subjects. Will you make them pirates, 
when they act under the commission of a sovereign prince? They are then 'Subditi' to 
him, and so 'Inimici' to us. 

Mr. Phipps. It does not take away their allegiance to their lawful prince. They may go to 
the French king, and serve him; yet that does not transfer their allegiance from their 
lawful prince to the French king, and make them his subjects. But however, to make 
them subjects within this indictment, they must be 'Gallici Subditi;' so they must be 
Frenchmen as well as subjects. 

L.C.J. Acting by virtue of a commission from the French king, will excuse them from 
being pirates, though not from being traitors to their own state; but to all other princes 
and states against whom they do any acts of hostility, they are enemies: And their 



Evolution In England 77 

serving under the French king's commission, makes them his subjects as to all others but 
their own prince or state. . . . 30 

It would thus appear that having lost on all grounds in the case of the eight 
Irish commissioners, the point of view expressed by Dr. Oldys had won on all 
points three years later. Indeed, the victory went further, as the denomination 
of Lord Chief Justice Holt, a Common Law judge, to head the tribunal had a 
great impact on the forms of indictment, proof and other questions under the 
Act of 1695 where the civilians disagreed with his rulings; the arguments run 
throughout the report. 31 And such questions as might under Tindall's 
rationale have been determined by simple assertion of the Crown, as whether 
there was a "state of war" between France and England at the key times 
(there having been no declaration of war by either side), were submitted to 
the jury as questions of fact. Despite the fact that Vaughan was convicted and 
hanged, the natural law Grotius-Oldys approach was winning when the 
tribunal was dominated by Common Law judges instead of being a council of 
successful political figures. 

The disagreement represented by the conflicting views of Tindall and 
Oldys as to the proper definition of "piracy" for purposes of a prosecution 
under the statute of 1536 which, it will be remembered, uses the words 
"treason," "felony" and "robbery," but not the word "piracy" in its 
operative provisions, was not satisfactorily resolved for the future by the 
precedent of the convictions as "pirates" of the eight Irish commissioners of 
King James or by the statute of 1695 and the trial of Thomas Vaughan. Doubts 
as to the English conception of "piracy" as a form of "high treason" were 
partially resolved in 1700 by statute: 

That if any of His Majesty's natural-born Subjects or Denizens of this Kingdom, shall 
commit any Piracy or Robbery, or any Act of Hostility, against others His Majesty's 
subjects upon the Sea, under colour of any Commission from any Person whatsoever, 
such Offender and Offenders, and every one of them, shall be deemed, adjudged, and 
taken to be Pirates, Felons and Robbers; . . . and suffer such Pains of Death, Loss of 
Lands, Goods and Chattels, as Pirates, Felons and Robbers upon the Seas ought to have 
and suffer. 32 

That the British municipal law of treason should not have been clarified, but 
the British municipal law of "piracy" should have been clarified (or 
expanded) in this way is probably due to the ease of trials by Commission 
using Admiralty judges but Common Law procedures as set up by the statute 
of 1536. At least the cases of the eight Irish commissioners and Vaughan point 
that way. It appears to have been a choice based on good political grounds to 
avoid a trial in the Common Law courts and to permit pejorative adjectives to 
be thrown at some of the licensees of foreign sovereigns who claimed a right 
to act in disregard of English law as interpreted by the highest political 
authorities in England. It is noteworthy, however, that merely taking a 
foreign commission was not by itself deemed to involve "piracy"; only the 



78 The Law of Piracy 

use of that commission against English subjects and denizens — those who were 
parties in the conceptions of the time to the social contract between nationals 
and residents of England on the one hand, and the sovereign on the other who 
was obliged by that tie to protect them. It is also noteworthy that the statute of 
1700 does not purport to make foreigners acting in excess of foreign 
commissions into "pirates" at English law; only Englishmen acting against other 
Englishmen were deprived of the protection of a foreign commission. Since 
jurisdiction to make laws that are binding on a state's own nationals wherever 
they may be was undoubted in the legislative organs of a state, and that principle 
of jurisdiction based on nationality has traces in the very earliest conceptions of 
social organization 33 and is sufficient to justify the English legislation, it would 
seem that the international law of piracy as posited by Grotius and Gentili, was 
irrelevant to the entire proceeding. What was involved was an English statute 
giving to an English tribunal subject-matter jurisdiction to try Englishmen for 
acts against other Englishmen. To the extent there is any implied reference in 
this statute to international law, it was merely as a technical limit the English 
were drawing to the legal capacity under international law of a foreign 
sovereign to license depredations against English shipping or, even more 
narrowly, to limit that sovereign's capacity to remove Englishmen and other 
residents of England from the obligations arising out of their being parties to the 
English social contract. 

English Commissions: Positive Grace v. Natural Justice 

Another question remained to be considered by the English courts. That 
was the degree to which captures beyond the authority of an otherwise valid 
English commission constituted "piracy. " The property law implications ot a 
"piratical" capture had been worked out by Caesar long before. 34 The new 
issue was whether action in excess of a commission was a crime, or a mere tort 
with civil (i.e., tort and property) but not criminal law consequences. 

It might be well at this place to recapitulate the evolution of those 
commissions. There is clear evidence that by 1599 "piracy" was to become 
the crime at English municipal law of an English privateer even under valid 
English license who did not bring his capture in for English adjudication. 35 
The means by which this was done were the insertion into every commission 
and bond beginning in 1602 of "an especiall article and clause to inhibite them 
[English privateers] from comminge either in the Streightes [of Gibraltar] or 
Barbarie, or for seeling anye of the goodes taken by them in anye other place 
then [sic] onlie within this realme of Englande. " 36 And in 1643 the Admiral the 
Earl of Warwick instructed his fleet: 

[ W]hen the shipp under your command shall apprehend any pyratts . . . you are to cause 
them to be kept in safe custody . . . [until] I may take course for the sending of the sayd 
shipps and goods into some of his Majestie's ports, according to instructions to mee given 
in that behalfe. 37 



Evolution in England 79 

There were, of course, other reasons for the licensing procedure than to 
assure payment of the Admiral's and the King's shares of belligerent 
captures and of "pirate" goods. In principle the regulations requiring a 
license from the King rest on the assumption that the King by withholding 
the license can forbid the activity for which the license is legally required. 
Thus, the assertion of a legal power to issue a license is not only a source of 
money directly, since payment can be demanded for the license itself, it is 
also an assertion of authority against the Parliament or other lawmaking 
body. And it is a means of asserting discipline over the general populace 
which, at times, might have been an end of itself. 38 

Now, since by 1700 it had been English practice for over a hundred years 
to require a special license of anybody seeking to sail against "pirates"; 
and even merchant venturers appear to have been required to get those 
licenses, the natural law approach taken by some jurists 39 concluding that 
there was no need of a license to hang "pirates" when it was as a practical 
matter not feasible to take them to a port in which they could be properly 
tried, seems inconsistent with the formal assertions and practices of the 
administrators of England. It is, of course, possible, that the proprietors of 
the great companies went along with the approaches of the administrators 
because it was politic to do so, and that it was policy, not law, that 
determined the entire English superstructure of practice built on an 
underlying natural law of self-defense and property rights so valued by the 
naturalist common lawyers. But it is probably fruitless to speculate as to 
the most congenial theoretical models useful to make sense out of complex 
events. It is possible to accept the positivist view as to the "grace" 
involved in permitting action against enemies or pirates without a license 40 
as easily as it is possible to accept the naturalist view implying that it 
would have been unjust, and possibly illegal in the grand scheme of natural 
law, for the Crown and its judicial officers to withhold that "grace." 

In any case, in the prosecution of John Quelch, 41 there is evidence that 
by 1704 the rumblings of natural law and "social contract" theory had 
become if not dominant at least significant in New England. Positivist 
theory emphasizes the legal power of a sovereign to grant a commission 
and withholds authority to act in any way from those individuals not able 
to find a license for their act in either the express grant of a license or in the 
implied grant of a license by action of Common Law or tradition; 
naturalist theory emphasizes the direct legal powers of individuals to 
protect their natural rights and views the sovereign, deriving his own legal 
powers from the consent of the governed under social contract theory, as 
either bound to grant the license (even retroactively) or unnecessary. 
Natural law jurists would allow individuals to protect their natural rights 
without any grant of legal authority from the political superstructure of 
society. 



80 The Law of Piracy 

This jurisprudential distinction seems to be the bridge over which English 
municipal law as applied to "piracy" crossed into the realm of international 
law. A license from a sovereign might raise international law questions with 
regard to action against foreigners whose own sovereigns might seek to 
protect them, but where the "pirates" to be hunted under a license were 
nationals of the license-granting sovereign in ships of that sovereign or of no 
sovereign on the high sea, no international law issues are presented. And 
where the "pirates" are foreigners or anybody in a foreign sovereign's vessel 
or in foreign sovereign's territory, the questions raised by the "pirate hunter" 
pursuing his license beyond the reach of his own sovereign's jurisdiction to 
enforce his own law regarding "piracy" are resolved by the normal means of 
pursuing the domestic remedies of the licensing sovereign (normally through 
prize court in rem actions to recover property improperly captured) or by war, 
at that time normally pursued through private licenses granted to aggrieved 
individuals by their offended sovereigns. 42 An outline of the system seen 
through the naturalist eyes of Henry Marten (Judge of Admiralty, 1617-1671) 
in 1626 was prepared during a technical state of peace between England and 
Spain when nonetheless letters of marque and reprisal had been issued in 
response to alleged Spanish captures from English merchants: 

[T]his commission is not of grace, but of justice; for it is intended that none have theis 
[these] Letters of Reprisall but such as have received losse & damage & wronges; to 
whome his Majestie, beeing not able otherwise to minister right and redresse of the 
wronges and losses (a duty incident to his royall function), doth in this kind and by his 
meanes, affoordjustice and due satisfaction .... Were there a solemn warr between us 
and the King of Spayn, it is notorious that whatsoever wheresoever any subject could 
gett from the King of Spayne's subjectes should bee his own jure belli, and not the 
Kings . . . Now, because there is no such common or solemn warr, but a reprisall warr, 
this privilege or benefitt is restrayned to them who have such commissions of 
reprisall . . . . 43 

The same notion expressed a generation later by the positivist Jenkins will 
illustrate the distinctions drawn here: 

[PJiracy at sea is made up of the same ingredients as robbery on land; for it is piracy to 
assault a ship, carry away a ship or goods out of a ship, unless it be in necessity (in which 
case payment must be made and the victim able to spare the things taken). 44 Also a man is 
excused if he takes a ship or goods by a legall commission in time of war or by reprisalls; 
but otherwise he shall be esteemed a pirate . . . . 45 

Where Jenkins's general language would seem to label as "pirate" an 
unlicensed foreigner acting wholly outside of England and attacking ships 
only of third countries, Marten's logic applied to the same case would seem to 
excuse the foreigner on the basis o( natural justice if his sovereign had 
arbitrarily refused to issue the necessary commission. But since neither 
Marten nor Jenkins was focusing on the case of foreigners, it would be 
improper to read specific applications to foreigners into their generalities. It 
might be noted in passing that this excerpt from Jenkins appears to be the first 



Evolution in England 81 

historically in which the notion appears that to be " piracy" the taking must 
be either from a second ship, or the ship itself must be taken from its rightful 
possessors; thus, that "piracy" might may not be quite the same as "robbery 
within the jurisdiction of the Admiral's courts" (which would include a 
forcible taking wholly within a single English vessel), but must involve some 
element of foreign jurisdiction or, more precisely, some gap in the normal 
jurisdictional rules applicable to English legal prescriptions. To the extent 
that his approach would find it to be "piracy" if an Englishman attacked a 
second English vessel at sea, which was, of course, precisely the case with 
regard to James II 's privateers, the border between international law and 
municipal law would seem to be very vague indeed. As noted above, the 
English handling of those cases involved the use of the municipal law 
regarding "piracy" and the utter rejection by the Lords of the Admiralty and 
Privy Council of the notion that international law or Civil Law might stand in 
their way. Presumably, Jenkins would have denied that the language quoted 
here from 1680 was intended to apply to such a case, but only to the case of 
unlicensed Englishmen attacking a foreign vessel or unlicensed foreigners 
attacking an English vessel; that in other cases either English municipal law 
applied without reference to any international complications, or, if English 
law were not applicable because all actors and victims were foreign, that it 
was not of English concern and the international law implications, if any, 
should be worked out in diplomatic correspondence and not by the English 
courts. Marten, on the other hand, would appear to have adopted an approach 
that would make the underlying "justice" of the attacker's case a legal 
question for whatever tribunal was hearing it, and thus to bring the 
international legal order's concepts of "justice" into play even in a municipal 
law trial. 

The question of whether a foreign license had to be proved in an English 
court did not involve the droits of Admiralty, the Crown's share in any 
privateer's booty, nor did it involve the extent of the Crown's or Parliament's 
legal power to control the actions of Englishmen abroad. Thus, the political 
need for strict form was much less. The general coalescence of state authority 
over the acts of individuals was nonetheless important to the emerging 
commercial order. The issue of greatest importance to the new mercantile 
classes was that goods and vessels taken by a privateer be submitted to a 
tribunal for an in rem proceeding at which the owner could present his case, if 
for no other purpose than to satisfy his insurance company that the goods had 
in fact been taken under conditions covered by the insurance contract. 46 The 
English assertions of the importance of a valid commission were thus never 
applied with strictness to foreigners, and even as applied to the likes of 
Captain William Kidd (to be discussed below) appear to have been 
exaggerated. The situation was more or less definitively summarized in 1729 
when a Majorcan Spaniard without a commission seized a British vessel as 



82 The Law of Piracy 

part of the war between Great Britain and Spain. The King's Advocate was 
asked for an opinion as to whether the privateer without commission could 
properly be treated in England as a "pyrat. " George Paul rendered an opinion 
in the negative: 

That by the Laws of Nations (strictly considered) commanders of uncommissioned ships 
have no power or authority to take or seize the Vessels or Goods of a State in War, with 
their Sovereign, but such capture has never been deemed piracy, provided the ship 
taken, has been carried by the Captor, without fraud or delay, into the first proper port, 
belonging to his Prince, and there delivered without embezelment, to the officers of 
Justice, to be proceeded against as enemys goods; such ships and Goods are always 
rendered in Great Britain as the perquisites of the Admiralty, without any certain [?] 
[sic] profit or advantage to the seizor. 47 

"A Pyrat," according to Dr. Paul, is "a Sea Thief" only. He suggested that 
the Spaniard be detained until it could be determined whether he delivered 
the captured goods and vessel to a proper port for legal condemnation. 

Animo Furandi and Hostes Humani Generis 

The dispute between Tindall and Oldys had other major implications for 
the public international law of piracy which were not resolved by the statute 
of 1700 bringing some "rebels" into the procedures applicable to "pirates" as 
a matter of English municipal law. The civilians led by Oldys had given two 
other distinct reasons than valid commissions why Vaughan and the other 
commissioners should not have been treated as "pirates," and those reasons 
stand regardless of the perceived invalidity of King James's commissions. 
They were (1) that it is an essential element of the English municipal law 
"crime" of "piracy" that the accused be acting for private motives ("animo 
furandi") and not as part of a struggle for political power; and (2) that the 
international law label by Coke's time was considered to require that the 
accused be acting against all lucrative targets — that he handle himself as 
"hostis humani generis" — and not the vessels of one flag or a narrowly 
prescribed group of allied flags alone. The first is not entirely incorporated 
into the concept of acting under a license since licenses, letters of marque and 
reprisal, had been considered necessary at English municipal law to authorize 
English takings of foreign goods or vessels from at least the 14th century, and 
that requirement had existed wholly independently of any motive require- 
ment from the earliest records. 48 The idea that "animo furandi" was an essential 
element of the "crime" of "piracy" appears instead to derive from the 
English Common Law relating to "robbery." 49 If that is correct, then the 
requirement of predatory intent, taking for private gain as distinct from a 
struggle for public power, would be a result of the use of the word "piracy" in 
the nonoperative parts of the statute of 1536, and the growing identification 
of that word with the private acts, "robberies," which were the real subject 
matter of the statute. Whether the statute of 1536 itself intended this result is 



Evolution in England 83 

doubtful. It may be remembered that the commission of 1511, by which 
Henry VIII authorized John Hopton to clear the area near English ports of 
"praedones, pirates, exules, et bannitos" 50 did not distinguish between those with 
private motives and those "exiles and outlaws" whose depredations might 
have been for public political purposes in France or elsewhere. It might also 
be remembered that until about 100 years after the statute of 1536 there was a 
serious legal question as to whether the takings by commissioners of the 
Barbary states' rulers should properly be considered to be "piracy"; the 
public purpose of those takings, as seen from the point of view of the Barbary 
states and in light of the British privateering practices of this time continuing 
until the 19th century, cannot be seriously questioned. Goods taken by the 
Barbary commissioners were openly sold and the relationship of the fisc of 
those states to the practices of the commissioners cannot be doubted. 

The evolution of the phrase "hostes humani generis" is also important to an 
understanding of the conception of "piracy" in public international law at the 
end of the 17th century. The phrase first appears printed in England in 1644 51 
reflecting usage no later than 1634 and in a form that seems to imply still 
earlier origins. The conception appears in Cicero, 52 but in a narrowly 
restricted context relating to the politically significant communities of the 
Eastern Mediterranean of Cicero's time and earlier who pursued a course of 
behavior similar to that of the Vikings of about 800 years later. 53 The 
evolution of this classical conception into a sense of outlawry was discussed 
above. 54 The idea apparently was that the laws of war, which even in classical 
days were "international" in the sense that gods who were not subordinate 
one to another were fighting through earthly representatives as equals under 
an overarching world order, were applicable to "hostes" in "&e//o," enemies in 
war. "Virata" were "hostes" in a permanent belligerent relationship to all 
communities, because they did not declare "war" before their attacks, and 
attacked all with whom they were not in treaty relationships or who were too 
strong to beat. This legal and practical situation had its impact on the law of 
property, particularly the law regarding property changes as a result of war, 
postliminium. In that single area, some analogy was drawn, apparently at 
least in part reflecting a pejorative view o( those who interfered 
unpredictably with peaceful commerce as the Roman Empire consolidated its 
economic and political hold on the Eastern Mediterranean, between "pirata" 
on the one hand, and criminals at Roman law, "praedones" and "latrones," on 
the other. Now, by the early 17th century in England the same concept was 
sought to be applied by analogy to the Western Mediterranean communities 
of Algiers, Tunis, Salee and Tripoli, the Barbary states. As the legal results of 
attaching the label "piracy" were conceived to be broader and broader, 
apparently to some publicists involving outlawry of the "pirates" for all 
purposes, the degree of political organization and economic importance of 
the Barbary states made it advisable to withhold the word (and thus its legal 



84 The Law of Piracy 

results) from those politically stable and functioning communities. At the 
same time, the word "pirates" had begun to be attached to all who interfered 
without the backing of a substantial political and legal community in seaborne 
commerce. Thus, it seems that the word shifted its meaning from raiders with 
a substantial political organization in perpetual "war" with their neighbors, 
to common robbers at English municipal law. The phrase "hostes humani 
generis" apparently survived from the old concept, and was applied to the new, 
without thought as to the real meaning of the word "hostes" in Latin, and its 
legal consequences in public international law. Ironically, it was applied to 
distinguish rebels fighting without a declaration against those who considered 
themselves the legitimate government, from mere robbers and outlaws 
within the jurisdiction of the English Admiralty tribunals. Yet it was the first, 
the rebels, who were claiming the privileges of "hostes in hello," enemies in 
war, and whose situation in fact bore some analogy to the concept o£ 
"pirates" in classical usage, while it was the latter, the robbers, who would 
have been called not "pirata" but "praedones" or "latrones" by Roman jurists 
and who were not "hostes" at all, but simply criminals by the rules applied in 
English tribunals. And it was the desire to heap contempt on rebels that they 
were labeled "pirates" and "hostes humani generis" by Tindall and those 
accepting his definitions by the end of the 17th century, while from those 
labels were drawn the legal results that they never had in classical days: 
Outlawry. 

But Robert Walton in 1693 had argued that the phase "hostes humani generis" 
was not a mere description or a technical phrase. 55 He seems to have drawn 
from it the idea that permanent and general predation was an essential 
element of the accusation of "piracy"; that the accused "pirate," to deserve 
the word, must have robbed the merchants of all nations without 
discrimination by flag. It is tempting to read large conclusions from Walton's 
short comment; it can certainly be suspected that Walton was well educated 
in the classics and was repeating the classical use of the word, making that its 
meaning in 1693 as a matter of public international law. If so, his conception 
seems to have been anachronistic. Did he mean for English tribunals set up 
under the statute of 1536 to try contemporary Vikings, such as Barbary states 
corsairs and Malayan nobles, for "piracy"? Or did he merely mean that in his 
view the word should not be attached to rebels or anybody else for whom the 
application of English municipal law relating to robbery at sea was not 
appropriate for other reasons? 

One paradoxical conclusion seems inescapable: The phrase, "hostes humani 
generis," the one phrase that all writers seem to agree should fit somehow in 
any definition or description of "piracy," is the one phrase impliedly linking 
the 17th century conception of "piracy" to classical writings, and in no way 
fits the facts or the legal conclusions drawn by 17th century policy makers or 
tribunals from those facts. 



Evolution in England 85 

The question was not firmly resolved as to whether it was proper to apply 
to rebels the English municipal law procedures created to handle "robbery" 
within the jurisdiction of English Admiralty. It apparently disturbed at least 
some jurists removed from the immediacy of politics to apply those 
procedures and words (and ultimate punishments) to people whose true 
transgressions were better described as treason or mutiny, crimes under 
English municipal law that might even be within the jurisdiction o{ the 
Admiralty tribunals in some cases, but which were not apparently considered 
to be among the "petty treasons" or "felonyes" covered by the statute of 
1536. Disagreement also apparently remained with regard to the importance 
of a motive of private gain (animo furandi) as an essential element of the crime. 
And the phrase "hostes humani generis" appears to have remained in the minds 
of some a key to withholding the label "piracy" and its legal results from 
those who attacked the property of one or two nations only quite apart from 
the question of public authority for those attacks. 

Other serious questions remained as to the precise definition of "piracy " at 
its least controversial level: The case of the private-gain motivated, all-prey 
attacking, unlicensed Englishman. The simplest case, Rex v. Dawson (1696), 
the one most frequently quoted for its charge to a grand jury defining 
"piracy," is variously cited. 56 The charge was given by Sir Charles Hedges, 
judge of the high court of Admiralty. The tribunal was composed of the same 
eminent judges sitting in the Thomas Vaughan case, 57 which in fact was tried 
immediately after the Dawson case on the same day, 31 October 1696; 
Vaughan and two others ("J. Murphey" and "Tim Brenain"; they were not 
tried with Vaughan) were arraigned formally while the Grand Jury was 
hearing evidence after the charge by Judge Hedges quoted below. 58 The 
reason for the extraordinary galaxy of legal talent in Dawson's case lay 
apparently not in the importance of the defendants, or because any 
particularly knotty legal issues, like the relationship o£ "piracy" to 
"treason, " were involved in the sordid tale, but the fact that at an earlier trial 
of the same defendants under the direction of Lord Chief Justice Sir John 
Holt, "the jury, contrary to the expectation of the court, brought in all the 
prisoners Not Guilty"! This new presentment was for other piracies, 
according to the report. 59 The key portion of the Charge follows: 

Now piracy is only a sea-term for robbery, piracy being a robbery committed within the 
jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his 
ship or goods violently taken away without legal authority, this is robbery and piracy. If 
the mariners of any ship shall violently dispossess the master, and afterwards carry away 
the ship itself, or any of the goods, or tackle, apparel or furniture, with a felonious 
intention, in any place where the lord Admiral hath, or pretends to have jurisdiction, 
this is also robbery and piracy. The intention will, in these cases, appear by considering 
the end for which the fact was committed; and the end will be known, if the evidence 
shall shew you what hath been done. 60 



86 The Law of Piracy 

The breadth of the charge is apparent; presumably it has been so often cited 
because so broad. Under this charge, it would seem that violently taking 
another's goods all within a single vessel is "piracy, "as is also "mutiny." It is 
not necessary to show the "animo furandi" by any evidence other than the 
taking itself; the "end" can be inferred from the facts surrounding the taking 
but an intention to "take" would seem to have been all that was needed to 
constitute "piracy." 

Jurisdiction and Legal Interest 

Naturalists v. Positivists (Again): Molloy v. Jenkins. Many questions remained 
on the fringes which assumed great importance to the evolving concept of 
"piracy" in Europe and its application to a rapidly expanding world 
community based on energetic trade. These questions resolved themselves 
into two basic ones: (1) What was the jurisdictional basis for English 
prescriptions over the acts of foreigners outside of the territorial jurisdiction 
of English courts; i.e., did English Admiralty jurisdiction extend to all 
"piracies," no matter where committed or by whom? and (2) Was there any 
legal authority left over, outside the court process, by which English 
commissioners could suppress without bringing to an English tribunal the acts 
of foreigners or Englishmen abroad that interfered with property rights and 
trade; i.e., was there to be anything left of the public international law of 
"piracy," or was the concept to be restricted to municipal law henceforth? 
In his eloquent paean on the virtues of free trade and the evils of "piracy" in 
1677, Charles Molloy set out his preferred answers. The jurisdiction of the 
tribunals established under the authority of the Act of 1536 61 can be exercised 
against any Englishman, apparently on the basis of his nationality alone, who 
commits "Piracy, be it upon the Subject of any Prince or Republique in Amity 
with the Crown of England," and apparently without regard to place so long 
as it be within the jurisdiction of the English "Admiral" as established by 
English precedents. 62 Foreigners could also be subjected to the same process, 
but only if there were some basis for English legal interest in their actions, 
such as the nationality of their victim being English 63 or if both the victim and 
the accused "pirate" are physically present in England and the matter has not 
already been clarified in the victim's own country, and the forms for personal 
accusations are used. 64 An additional basis for jurisdiction over the acts of 
foreigners was conceived to lie in the English claim to territorial jurisdiction 
over large parts of the seas: 

Piracy committed by the Subjects of the French King, or of any other Prince or 
Republique, in Amity with the Crown of England upon the British Seas, are punishable 
properly by the Crown of England only, for the Kings of the same have istud regimen 
dominium exclusive, of the Kings of France, and all other Princes and States whatsoever. 65 



Evolution in England 87 

The British Seas at this time were considered to extend "by long custom and 
usage" right up to the coasts of the Netherlands and France. 66 Obviously, the 
conception supported by Molloy was not of "universal" jurisdiction over the 
acts of foreigners abroad, but of jurisdiction in the normal English conception 
of the reach of national sovereignty. That included jurisdiction based on the 
nationality of the accused, on the territorial sovereignty over the place in 
which the event occurred (not the far reaches of the Admiral's jurisdiction in 
English ships wherever they might be, but only within the British seas), the 
nationality of the victim, 67 and in a special procedure allowing a criminal-like 
action to be brought on private initiative but not to enforce the "King's 
Peace" — and then only in default of opportunity for the victim's own 
sovereign to adjudicate the matter. 

As to incidents "on the Ocean," i.e., beyond the reach of English 
jurisdiction as normally applied, Molloy considered that there was an almost 
unlimited scope for self-help: 

If Piracy be committed on the Ocean, and the Pirats in the attempt there 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 up at the main Yard end before a 
departure; for the old natural liberty remains in places where are no judgments. 68 

... So likewise, if a Ship shall be assaulted by Pirats, and in the attempt the Pirats shall be 
overcome, if the Captors bring them to the next Port, and the Judge openly rejects the 
Tryal, or the Captors cannot wait for the Judge without certain peril and loss, Justice 
may be done upon them by the Law of Nature, and the same may be there executed by 
the Captors. 69 

A somewhat different view of the English law was taken by Sir Leoline 
Jenkins. Under his rationale for allowing private justice to be meted out to 
"pirates" he appears to have considered the Admiral's jurisdiction under 
English law to extend everywhere on the seas as if territorially based. But 
instead of requiring accused "pirates" to be brought in for adjudication, or 
restricting private punishment to cases where adjudication is denied by a 
foreign judge or impracticable for other reasons, and instead of relying on an 
underlying law of nature to authorize private punishment, he construed the 
English law to commission everybody a law officer: 

There are some Sorts of Felonies and Offences, which cannot be committed anywhere else 
but upon the Sea, within the Jurisdiction of the Admiralty . . . the chiefest in this Kind is 
Piracy. 

You are therefore to enquire of all Pirates and Sea-rovers, they are in the Eye of the Law 
Hostes humani generis, Enemies not of one Nation . . . only, but of all Mankind. They are 
outlawed, as I may say, by the Laws of all Nations; that is, out of the Protection of all 
Princes and of all Laws whatsoever. Every Body is commissioned, and is to be armed 
against them, as against Rebels and Traytors, to subdue and to root them out. 70 



88 The Law of Piracy 

Some time later 71 Jenkins expanded on this theory to lay the ground for an 
extension of English Admiraltyjurisdiction to what later became "universal" 
jurisdiction over "piracy:" 

Every Englishman knows, that his Majesty hath an undoubted Empire and Sovereignty in 
the Seas that environ these his Kingdoms .... 

But besides these four seas, which are the peculiar Care, and as it were, part of the 
Domaine of the Crown of England, his Majesty hath a Concern and Authority (in Right 
of his Imperial Crown) to preserve the publick Peace, and to maintain the Freedom and 
Security of Navigation all the World over: So that not the utmost Bound of the Atlantick 
Ocean, not any Corner of the Mediterranean, nor any Part in the South or other Seas, but 
that if the Peace of GOD and the King be violated upon any of his Subjects, or upon his 
Allies or their Subjects, and the Offender be afterwards brought up or laid hold on in any 
of this Majesty's Ports, such Breach of the Peace is to be enquired of, and tryed ... in 
such Country, Liberty, or Place, as his Majesty shall please to direct. So long an Arm 
hath GOD, by the Laws, given to his Viceregent the King, and so odious are the Crimes 
of Piracy, Bloodshed, Robbery, and other Violences upon the Sea, that Justice observes 
and reaches the Malefactors, even in the remotest Corners of the World .... 

This Power and Jurisdiction which his Majesty hath at Sea in those remoter Parts of the 
World, is but in concurrence with all other Soveraign Princes that have Ships and 
Subjects at Sea. 72 

This conception, that the territorial extent of the Admiral's jurisdiction in 
English vessels could become the basis for jurisdiction over foreigners not in 
English vessels whose acts do not directly affect English vessels, subjects or 
goods, although reserving to all other sovereigns the equivalent jurisdiction 
over all accused "pirates" (including, presumably, Englishmen committing 
their "piracies" from English vessels against either other Englishmen or third 
country nationals) seems rather much. 

The problem of putting limits to the implications of Jenkins's position as a 
judge in Admiralty supporting the widest possible English jurisdiction arose 
when the practical position was reversed and Scots subjects of King Charles II 
were sought to be tried as "pirates" in the Netherlands in 1675. They had held 
licenses from England, which appear to have been exceeded; the question was 
whether the foreign court had jurisdiction to examine into the validity of 
those licenses and their legal extent. Jenkins, no longer a judge but deeply 
involved as a trusted Royal adviser, was asked for his legal opinion by Sir 
Joseph Williamson, the Secretary of State under King Charles II at the time 
charged with principal political responsibility for Anglo-Dutch relations. 73 
The legal opinion, dated from Nimeguen on 3 April 1675, caught Jenkins on 
the horns of a dilemma, trying to reconcile his expansive view of English 
jurisdiction with his fundamental positivism by which the consent of other 
states affected must be construed from diplomatic correspondence, treaty or 
practice before the English jurisdiction can be exercised. He began by 
affirming his basic positivism, suggesting that the disagreement between 
England and the Netherlands about jurisdiction over the Scots privateers, 



Evolution in England 89 

will never be decided; because there is no third Power that can give a Law that shall be 
decisive or binding between two independent Princes, unless themselves shall please to 
do it (which seldom happens) and then cannot be extended beyond the Cases expressed 
by that Treaty. 74 

He then drew an analogy between this case and another in which a French 
merchantman had been tried in an English Admiralty court and although the 
master of the vessel had successfully escaped, his ship itself and the goods on 
board were confiscated as "pirate" goods, and a French formal objection 
rejected. 

[T]he King and his Council were pleased to adjudge, he was sufficiently founded in 
Point of Jurisdiction, to confiscate that Ship and Goods and to Try capitally the Person 
himself, had he been in hold; the Matter of Renvoy [reference to foreign, in this case 
French, law] being a Thing quite disused among Princes; and as every Man, by the Usage 
of our European [sic] Nations, is justiciable in the Place where the Crime is committed; so 
are Pyrates, being reputed out of the Protection of all Laws and Privileges, and to be 
tried in what Ports soever they are taken. 75 

This logic, asserting that the law of the place of the crime determines 
jurisdiction but that because "Pyrates" are not protected by jurisdictional 
limits fixed by European practice among sovereigns, they can be tried in 
whatever port they are taken, seems insupportable; the jurisdictional quarrel 
was not between the English and the "pirate," but between the English and 
the French sovereigns. Implicit is the denial of the exclusiveness of French 
jurisdiction with regard to events occurring on board a French ship, and there 
is no explicit reference to English victims or general English jurisdiction on 
the high sea to substantiate the conclusion. Instead, it treats jurisdiction as an 
assertion of sovereignty to be made on any territorial linkage between the 
accused and the "sovereign;" if nothing else, the place of arrest, which seems 
a minimal link that would exist in any case in which a criminal trial could be 
contemplated as a practical matter. It appears to reach that conclusion by 
supposing there to be a lacuna in the normal jurisdictional rules in the case of 
accused "Pyrates," cutting them off from the protection of their own 
sovereigns even before any act of "piracy" has been proved in a court. Since 
the jurisdiction seems unlimited, resting on the mere accusation of "piracy," 
it amounts to making port calls by any vessel in a port ruled by a country other 
than the country of the vessel itself, a very dangerous business. The risks were 
probably increased by the notion that, as in the case recited by Jenkins, the 
ship and goods once denominated "pirate goods" were subject to total 
confiscation by the court itself. 

But under this approach, it would have seemed that the Scots were 
properly tried by the Dutch authorities, and that is the opposite conclusion 
to the one Jenkins reached. The basis for distinguishing the two cases was to 
downplay the nationality link evidenced by the flag of the "pirate" vessel as 
a basis for interposition by the sovereign to protect his subjects, and to raise 



90 The Law of Piracy 

the license, "Commission," issued by the foreign sovereign to a position o{ 
prime importance: 

But as the Law distinguishes between a Pirate who is a Highwayman, and sets up for 
Robbing, either having no Commission at all, or else hath two or three, and a lawful 
Man of War that exceeds his Commission [including, apparently, a privateer; the case of 
the Scots privateers would not have been covered if Jenkins had intended his language to 
draw a distinction between privateering and naval activity]; so I think, Sir, you had 
Right to interpose for these Scots . . .; for tho' the Crimes were great and notorious, yet 
the Proceedings whereby they were laid open and proved to be such, being void and null, 
if the Judges did (as I am of Opinion they did) exceed the Bounds of their Power, it may 
be truly said, the Crimes are but pretendu [supposed], being the Proofs made of them are 
not sufficient in Law. 76 

In the rest of the opinion, Jenkins finds two other arguments for English 
jurisdiction to the exclusion of the Dutch. First, that a treaty between 
England and the Netherlands, by not mentioning criminal trials in the article 
dealing with reparations for damages left nationality as the major jurisdic- 
tional link; 77 and second, that all ships in public service, whether naval, 
privateer, or impressed "out of the Thames," are to some degree the arms of 
the King, that taking them is "taking the King's Weapons out of their [the 
property owners', the Scots'] Hands pro tanto," and thus that proper recourse 
for those unjustly injured by the operation of those vessels is appeal to the 
King, not the exercise of foreign jurisdiction over them. 78 

The treaty argument seems to depend on matters of interpretation with 
which the Dutch officials disagreed and which seem in other ways weak. 79 
The King's Weapons argument would seem to apply to all vessels of English 
flag, as at least potentially the King's weapons because subject to English law 
which could order them at any moment into the King's service, thus to 
reverse the earlier argument distinguishing a French flag vessel sought to be 
protected diplomatically by France, and a French privateer that would be 
hypothetically the least French vessel that could legally be excluded from 
English jurisdiction by French interposition. The only thread that seems to 
run through the argument by Jenkins is that England wins all the time. It may 
thus be supposed to be an adversary's brief for the position most favorable to 
England, but its persuasiveness as an incisive analysis of the international law 
governing jurisdiction in cases of supposed "piracy" seems small. 

The differences between Molloy and Jenkins, while appearing technical 
and simply two different ways of approaching a single reality with no 
practical implications, are really very significant indeed. Two quite different 
conceptions of the law applicable to "piracy" are involved; conceptions 
which reappear time and again in English and American courts and which 
account, in part, for the inconsistencies in later decisions. From Molloy 's 
point of view, there is a "natural law" forbidding any person to deprive 
another of life or property without a higher motive supported by reason or 
the historical evolution of the overall system. Life and property being the 



Evolution In England 91 

natural right of all, the taking of the life or property of another cannot be 
consistent with natural law unless some other natural right, superior to the 
rights of life or property of the victim, is involved. Such higher rights might 
exist in the law that authorizes each person to defend himself and his property 
even if it means depriving another — certainly if that other is the aggressor 
seeking to achieve a taking not justifiable on some equivalent basis. It is 
possible to speculate further as to Molloy's unexpressed thoughts, for 
example, to wonder if the protection of the property of another wouldjustify 
the taking of the life of an innocent bystander. But such speculation leads to 
endless complications and is best left to the courts that find Molloy's basic 
attitudes appealing. 

Jenkins, as a judge dealing in Common Law procedures as applied in 
Admiraltyjurisdiction to criminal cases, and as a "political" Privy Counsellor 
to King Charles II, opposed Molloy's fundamental natural law approach with 
an emphasis on commissions and legal authority. From this point of view, 
there is no international law of "piracy "; only a municipal law authorizing its 
subjects to act against some people which that municipal law designates 
"pirates" on whatever basis it chooses. The limits to this approach seem 
analogous to the limits that reality and politics fixed on the approach taken by 
Gentili from the point of view of an international law expert, and it seems fair 
to label both "positivist" jurists. They both trace the legality of action to 
authorization by a state, which is conceived as exercising complete discretion 
on the basis of political factors to grant or withhold the legal labels or 
authorizations. The authorization determines the legality of action under the 
system that grants or withholds authorization; there is no question of 
morality, reason or motive on the part of either the "pirate" or the 
"commissioner" apprehending him. 

There are so many implications to this split in fundamental orientation that 
a working out of the major ones is best left to works onjurisprudence. Only a 
few can be mentioned here. For present purposes, perhaps the most important 
is the utility of the Grotius (for that is where it first appears applied to the law 
of "piracy" as known today)-Molloy-natural law approach to Common Law 
and Admiralty tribunals. In the absence of a formal expression of public 
policy in a writing like a statute or treaty, a tribunal must be guided by reason 
in the light of higher principle, and the judges must be aware that their 
capacity to function as legislators, attaching legal labels and results for the 
sake of national interest, is severely limited by the structure of the forum and 
their own training and experience. Judges, bound by rules of evidence, and 
concepts of both substantive and procedural fairness to those accused o£ 
"crimes, " cannot impose what they would like the law to be; they are bound 
by tradition and the English Constitution tracing back to Magna Carta and 
before to apply the law as it exists reflected in the traditions and habits of 
English society with only passing regard for what might be desirable for the 



92 The Law of Piracy 

future. To them, appeals to reason and higher principles recognized in the 
legal tradition are liberating, and justify departures from the harshness of 
rules that unmitigated would require the punishment of a person who is 
morally innocent. 

On the other hand, to legislators, whether in Parliament or acting directly 
for the Crown as ministers or members of a council with discretion to make 
law, or as naval officers or merchants seeking to protect their lives or 
property or the lives or property of those who rely on them for protection, the 
notion that deep analyses of the underlying values of society must be 
undertaken before a "pirate" can be properly hanged is absurd. A simple rule 
that life and property can legally be protected from any assault is attractive, 
and the notion that any responsible person is commissioned by the operation 
of law, whether via a commission issued by the Crown's officers or by direct 
operation of the King's will without a written commission, is irresistable. The 
world is simple and authority lies in the substantial people possessed of 
property who undertake hazards for profit which the society considers 
beneficial to all. If there are complications, then legislators or counsellors can 
confront them as a matter of policy and change the rules to take account of 
them. To practical men of affairs, and statesmen and merchants, particularly 
sea captains, are practical men of affairs because the political and economic 
system in England favors practical men of affairs for those functions in 
society, the Jenkins approach is the only one that makes sense. 

The Courts 

Jurisdiction. As to jurisdiction and the nationality of the victims, in Rex v. 
Dawson, 80 aside from repeating some of the language of the statute of 1536, 
Hedges developed Leoline Jenkins's jury charge of the previous generation. 81 
Hedges wrote: 

The king of England hath not only an empire and sovereignty over the British seas, but 
also an undoubted jurisdiction and power, in concurrency with other princes and states, 
for the punishment of all piracies and robberies at sea, in the most remote parts of the 
world; so that if any person whatsoever, native or foreigner, Christian or Infidel, Turk 
or Pagan, with whose country we have no war, with whom we hold trade and 
correspondence, and are in amity shall be robbed or spoiled in the Narrow Seas, the 
Mediterranean, Atlantic, Southern, or any other seas, or the branches thereof, either on 
this or the other side of the line, it is piracy within the limits of your enquiry, and the 
cognizance of this court. 82 

He ends with a rousing appeal to patriotism and glory to encourage the jurors 
to do all they could "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. " 83 The grand jury brought in bills 
against the defendants, who were then tried, convicted and hanged. 84 Their 
defenses were to the facts, seem unconvincing as reported, and raised no 
further legal issues. 



Evolution in England 93 

Again, Hedges's language seems to reach very far. He did not address the 
issue of whether an Englishman was authorized by implied commission or by 
universal natural law to hang pirates wherever caught, nor did he really address 
the question of universal jurisdiction: The applicability of English conceptions 
of piracy as a crime to foreigners acting beyond the reach of English territorial 
claims. In the case before him, no foreigners were defendants and no 
extraordinary powers in uncommissioned pirate-captors were at issue. Thus the 
entire proceeding can be rationalized as the application of English municipal 
law to Englishmen through the normal processes of Englishjudicial administra- 
tion, and the unqualified assertions of wider authority are mere puffery. 

The most enlightening case of the "classical" series dealing with national 
jurisdiction over foreign "pirates" is the notorious trial in 1705 of Thomas 
Green before the High Court of Admiralty of Scotland. 85 The procedures of 
Scotland followed the forms of the Civil Law; the statute of 1536 did not apply 
directly as an act of Parliament in Scotland since the union of the crowns was not 
until the accession of James I/VI to the throne of England in 1603, and the Acts 
of Union uniting the Parliaments of England and Scotland were not passed until 
1706-1707, 86 two years after Green's trial. 

Captain Green was an Englishman, master of a ship owned by the Company 
of Scotland Trading to Africa and the Indies in competition with the English 
East India Company. He sailed with a commission authorizing him to attack and 
suppress pirates, issued by King William III. 87 He and his crew, on arrival in 
Edinburgh to report to their owners on a voyage to Africa and India, were 
arrested for "piracy" and an elaborate series of factual allegations made to the 
effect that they had plundered another Scottish vessel near Calicut, sunk the 
vessel and tossed its crew over the side to remove witnesses. Green and his 
accused English crewmen were convicted and Green, his first mate and one 
other man were hanged, apparently to appease a mob. It was later discovered 
that the supposed victims were alive and well in India and that the supposed 
"piracy" had never in fact occurred; 88 all the testimony about it was explicable 
on other grounds, such as currying favor with the mob. 

From the point of view of this study, the important part of the case was its 
handling of the jurisdictional question. Green was not a Scot, nor was his ship 
considered a Scottish ship for purposes of jurisdiction, nor was any act 
connected with the supposed "piracy" committed in Scotland. The tribunal did 
not rest its jurisdiction on the Scottish nationality of the supposed victims, 
although for popular opinion in Edinburgh that seems to have been the most 
important connection between Green and Scots law. The tribunal took a higher 
line, adopting the argument of the "pursuer" (prosecuting attorney): 

That though the competency of the judge in criminals be ordinarily said, to be found either 
in loco delicti (the place where crime was committed) or in loco domicilii (place of habitation of 
the delinquents) or in loco originis (the place of their birth) yet there is a superior 
consideration, and that is the locus deprehensionis (place where they were taken) where 



94 The Law of Piracy 

the criminal is found and deprehended, which doth so over-rule in this matter, that 
neither the locus domicilii . . . nor the locus originis . . . doth found the judges competency, nisi 
ibi reus deprehendatur (except the criminal be apprehended there). And so it is that here the 
pannels [defendants] were and are deprehended, which happening in the cause of piracy, 
a crime against the law of nations, and which all mankind have an interest to pursue, 
wherever the pirates can be found; the Procurator Fiscal's [Prosecutor's] interest to 
pursue is thereby manifest, and the pannels being here deprehended, cannot decline the 
admiral's jurisdiction as incompetent. 89 

This logic represents an assertion of universality of jurisdiction in the case of 
"piracy" that goes far beyond the precedents. The normal rule was 
apparently conceived to be that the tribunals of the locus delicti had 
competence; which is a reflection of the "territorial" basis of jurisdiction 
familiar to international lawyers. In the Green case it would have supported 
English jurisdiction on the basis of the analogy between a vessel and territory 
of the flag or licensing state. 90 Prescriptive or legislative jurisdiction based on 
residence or nationality (locus domicilii or locus originis) of the defendant, it was 
correctly argued, is not sufficient to give a particular court competence unless 
the defendant is physically before the tribunal, i.e., in these pre-extradition 
days, one of those places is also the place in which the defendant was 
apprehended and detained (locus deprehendatis) . But the leap from the place of 
physical detention supporting jurisdiction based on residence or nationality, 
to finding prescriptive jurisdiction in the place of physical detention with no 
other contact, is a giant leap supported in the pursuer's logic only by the 
assertion that "piracy" is a crime against the law of nations and that all 
mankind have an interest in pursuing it. This legal interest in pursuit (i.e., in 
prosecution), the legally essential link between the incident and the 
application of local law to it, the link that gives to a Scottish tribunal the 
competence to hear the case without being considered an officious 
intermeddler in matters of no concern to Scots law, is asserted to rest on the 
characterization of "piracy" as a crime against the law of nations. From that 
characterization is said to flow universal competence, including the 
competence of a Scots tribunal. 

Commissions Become Evidentiary Instead of Determinative. The 
great case setting the English pattern concerning the need of an Englishman 
for an English "commission" was the trial in 1701 of William Kidd. 91 
Apparently Captain Kidd was well-known in England, and there is clear 
evidence that there had been business dealings of some sort between him 
(Kidd was a native Londoner) and the Earl of Bellamont, "Governor of New 
England," an Irish peer. 92 The degree to which those dealings might have 
involved the Governor in the profits of Kidd's adventures is not clear, but 
Kidd was formally a privateer, operating under two commissions sealed in the 
name of King William III, and it would have been entirely proper for the 
King's representative in any colony to be on convivial terms with a successful 
privateer. 



Evolution in England 95 

Kidd's two commissions were dated 26 January 1695 and 11 December 
1695. The first specifically involved Kidd in the New World: 

To our trusted and well-beloved Captain William Kidd, commander of the ship 
Adventure-Galley, or to any other the commander for the time being, greeting. 
Whereas we are informed that captain William Mase or Mace, and other our subjects, 
native inhabitants of New-England, New-York, or elsewhere, in our plantations in 
America, have associated themselves with diverse other wicked and ill-disposed 
persons, and do against the law of nations, daily commit many and great piracies, 
robberies, and depredations upon the seas in the parts of America and in other parts, to 
the great hindrance and discouragement of trade and navigation, and to the danger and 
hurt of our loving subjects, our allies, and all others navigating thereon upon their lawful 
occasions: Now know, that we being desirous to prevent the aforesaid mischiefs, and, as 
far as in us lies to bring the said pirates, free-booters, and sea-rovers to justice, have 
thought fit, and do hereby give and grant unto you the said captain William Kidd (to 
whom our commissioners for exercising the office of our lord high-admiral of England, 
have granted a commission as a private man of war ...)... and unto the officers, 
mariners, and others, who shall be under your command, full power and authority to 
apprehend, stop, and take into your custody, as well the said captain Thomas Too, John 
Ireland, captain Thomas Wake, and captain William Mase or Mace, as all such pirates, 
free-booters and sea-rovers, being either our own subjects or of any other nations 
associated with us, which you shall meet upon the coast or seas of America, or in any 
other seas or place with their ships and vessels, and also such merchandizes, money, 
goods, and wares as shall be found on board, or with them, in case they shall willingly 
yield themselves: And if they will not submit without fighting, then you are by force to 
compel them to yield. And we do also require you to bring, or cause to be brought such 
pirates, free-booters, and sea-rovers, as you shall seize, to a legal trial; to the end they 
may be proceeded against according to law in such cases .... And we hereby strictly 
charge and command that you shall answer the same [accounting for every ship and 
pirate taken] at your peril, that you do not in any manner harm or molest any of our 
friends or allies, their ships, or subjects, by colour or pretence of these presents, or the 
authority there granted . . . . 93 

The second recites that there have been injuries and acts of hostility 
committed by the French king and his subjects upon English subjects, that 
"many and frequent demands" had been fruitlessly made for redress and 
reparation, that the Privy Council had ordered "that general reprisals be 
granted against the ships, goods, and subjects of the French king." It then 
grants: 

Commission to, and do[es] license and authorise the said Wm. Kidd to set forth in 
warlike manner the said ship called The Adventure-Galley, under his own command, 
and therewith by force of arms to apprehend, seize, and take the ships, vessels and goods 
belonging to the French king and his subjects, or inhabitants within the dominions of the 
said French king, and such other ships, vessels, and goods, as are, or shall be liable to 
confiscation, and to bring the same to such port as shall be most convenient, in order to 
have them legally adjudged in our high court of admiralty, or such other court of 
admiralty as shall be lawfully authorized in that behalf . . . . 94 

Kidd was first charged with the murder of William Moore, a gunner of the 
Adventure-Galley; uncontradicted testimony had Moore muttering about Kidd 



96 The Law of Piracy 

not seizing a near-by Dutch ship, and Kidd, apprehensive of mutiny by a crew 
bent on turning to piracy, bashing Moore on the side of the head with a handy 
iron-bound bucket and cracking his skull. The incident occurred off the 
Malabar Coast (southwest India) and the defense of imminent mutiny was 
contradicted by several crewmembers called as witnesses testifying that the 
threatened mutiny by Moore and others wanting to turn pirate had been 
quelled some weeks before the killing. 

The jury took only an hour to deliver a verdict of guilty under a charge 
relating solely to the English law of murder by Lord Chief Baron Ward. 95 

The next day, Kidd and his companions were tried together for "piracy." 
The incident involved the capture "piratically and feloniously "of a merchant 
ship, the Quedagh [Kedah] Merchant, of unknown flag, "upon the high sea . . . 
about ten leagues from Cutsheen [Cochin], in the East-Indies, and within the 
jurisdiction of the admiralty of England." The events were alleged to have 
occurred on 30 January 1697 and the year after. 96 

Three of the prisoners, James Howe, Nicholas Churchill and Darby 
Mullins, sought to take advantage of a pardon proclaimed by William III 97 but 
failed on the ground that they had surrendered themselves to an English 
officer other than one of the four Commissioners named in the Proclamation. 
Indicative of the attitude towards Kidd in London when the pardon was 
proclaimed in 1698, the pardon covered all within the area east of the Cape of 
Good Hope who had been guilty of "piracies or robberies committed by them 
upon the sea or land" and who surrendered to the named Commissioners 
within the period fixed by the proclamation, but specifically excludes 
"Henry Every alias Bridgman, and William Kidd." 98 

Kidd sailed from New York in 1696 and flew a French flag when chasing the 
Quedagh Merchant." His defense was that the Quedagh Merchant had a French pass 
and that he was commissioned to take French vessels; also that his crew had 
threatened to mutiny if he did not take the Quedagh Merchant. 10 ° But he could not 
produce the French pass (which he claimed was being withheld by the Earl of 
Bellamont) and the court seemed disinclined to believe him. The court also 
seemed to believe that the commission to seize French property did not extend 
to the property of "Armenians" even if they had French passes. 101 In his charge 
to the jury, Lord Chief Baron Ward emphasized what he regarded as Kidd's 
repeated acts not consistent with the terms of his commissions: 

Could he have proved, that what he did was in pursuance of his commissions, it had been 
something: but, what had he to do to make any attack on these ships, the owners and 
freighters whereof were in amity with the king? This does not appear to be an action 
suitable to his commission. After he had done this, he came to land, and there, and 
aftewards [sic; obviously "afterwards"] at sea, pursued strange methods, as you have heard. 
The seeming justification he depends on is his commissions. Now it must be observed how 
he acted with relation to them, and what irregularities he went by ... . [W]e are 
confined to the Quedagh Merchant; but what he did before, shews his mind and intention 
not to act by his commissions, which warrant no such things .... 



Evolution in England 97 

Now this is the great case that is before you, on which the indictment turns: the ship and 
goods, as you have heard, are said by the witnesses to be the goods of the Armenians, and 
other people that were in amity with the king; and captain Kidd would have them to be 
the goods of Frenchmen, or at least, that this ship was sailed under French passes. Now if 
it were so, as Capt. Kidd says, it was a lawful prize, and liable to confiscation; but if they 
were the goods of persons in amity with the king, and the ship was not navigated under 
French passes, it is very plain it was a piratical taking of them. ... If he had acted 
pursuant to his commission, he ought to have condemned the ship and goods, if they 
were a French interest, or sailed under a French pass; but in his not condemning them, he 
seems to shout his aim, mind, and intention, that he did not act in that case by virtue of 
his commission, but quite contrary to it; for he takes the ship, and shares the money and 
goods, and, was taken in that very ship [Kidd had transferred from the leaky Adventure- 
Galley to the sound Quedagh Merchant] by lord Bellamont, and he had continued in that 
ship till that time, so there is no colour or pretence appears, that he intended to bring this 
ship to England to be condemned, or to have condemned it in any of the English 
plantations, having disposed of the whole cargo. . . . 102 

Turning to the other prisoners, the charge to the jury first focused on the 
three who had, by documents of indenture and witnesses proved themselves 
to be servants of Kidd and others on the voyage: 

Now, Gentlemen, there must go an intention of the mind, and a freedom of the will, to 
the committing a felony or piracy. A pirate is not to be understood to be under 
constraint, but a free agent .... It is true, a servant is not bound to obey his master but 
in lawful things, which they say they thought this was, and that they knew not to the 
contrary, but that their masters acted according to the king's commission; and therefore 
their case must be left to your consideration, whether you think them upon the whole 
matter guilty or no. . . , 103 

As to the rest, 

[W]e were, say they, under the captain, and acted under him as their commander: and, 
gentlemen, so far as they acted under his lawful commands, and by virtue and in 
pursuance of his commissions, it must be admitted they were justifiable, and ought to be 
justified: but how far forth that hath been, the actions of the captain and their own will 
best make it appear. It is not contested, but that these men knew, and were sensible of 
what was done and acted, and did take part in it, and had the benefit of what was taken 
shared amongst them: and if the taking of this ship and goods was unlawful, then these 
men can claim no advantage by these commissions. . . . [I]f you are quite satisfied that 
they have knowingly and wilfully been concerned or partaken with Capt. Kidd in taking 
this ship, and dividing the goods, and that piratically and feloniously, then they will be 
guilty within this indictment. . . . Whilst men pursue their commissions they must be 
justified; but when they do things not authorised, or never acted by them, it is as if there 
had been no commission at all. . . , 104 

The verdict under this charge was guilty all, including Kidd, except for the 
three servants, Robert Lamley, William Jenkins and Richard Barlicorn. 105 

A trial on four further indictments was held, and after that another trial on 
yet two more indictments, all relating to the taking of various specific ships 
not French or piratical within the sense of the two commissions. The results 
were the same as before, with the three servants acquitted and Kidd with six 



98 The Law of Piracy 

of his crew convicted. The charges to the juries by Mr. Justice Turton follow 
the lead of the charge by Lord Chief Baron Ward. The major emphasis of the 
evidence is to show which of the accused profited from the shares distributed 
by Kidd after the sale of the captured valuables, the three servants either not 
being shown to have received any share at all, or to have received a half share 
which it is alleged they turned over immediately to their masters who were 
Kidd himself, Abel Owens (the cook) and George Bullen (the mate). Kidd and 
his six convicted crew members were then hanged. 106 

It appears that as to the substance of the "crime" of "piracy," the charge 
given by Justice Hedges was not repeated, but its substance, that "piracy" 
was simply English Common Law "robbery" within the jurisdiction of the 
Admiralty, was assumed without any analysis. The essential elements of the 
crime are there, and no discussion of its borders was necessary or attempted. 
The murder of his own crewman by Kidd was not charged as " piracy" but 
directly as "murder." Whether this was done because the entire action 
occurred in a single vessel under the English flag (and thus no need was felt to 
refer to a legal word of art that might imply international significance) or 
because all the actors, accused and victim, were English, or any other reason, 
is not made clear. The same procedures were used by the tribunal in dealing 
with this charge as in dealing with the charges of "piracy" in the other two 
trials, thus it seems likely that the "felony" term of the statute of 1536 was 
being used, under which the procedures for "piracy" and for "felony" trials 
regarding events within the jurisdiction of the Admiralty were identical. 107 

It seems significant that the action in excess of his commission did not 
appear immediately to have involved the crime of "piracy." In Lord Chief 
Baron Ward's charge to the jury, much was made of the failure of Kidd to 
bring the captured Quedagh Merchant in for legal condemnation in accordance 
with the terms of the commissions, but nothing is made of the possibility that 
acting under the commission a mistake might have been made regarding the 
subordination or French connection of the captured ship. The argument 
regarding the possible immunity of the goods of merchants who are subjects 
of nations in amity with the King of England was directed at Kidd's apparent 
knowledge that they were not French or piratical (thus there being no 
possibility of an act under the commissions which was excessive because 
simply mistaken as to facts), and Kidd's ignoring the directions of his 
commissions with regard to the disposition of his captures. Apparently, errors 
might lead to loss of the prize in condemnation proceedings, and there was 
every likelihood that egregious errors would result ultimately in revocation 
of the commission as a practical matter. But such errors were not regarded as 
enough to make a good-faith capture into a "piratical" act. The problem was 
to prevent privateers using their commissions as a license to take everything 
and then try to buy off the innocent victims of their taking cheaply one by one 
if ever a victim found the privateer in a port with an English tribunal in it. The 



Evolution in England 99 

solution was to label such takings "piracy" when the privateer himself did not 
allow the victim the opportunity to present his case in an English prize court 
before the goods were sold and the proceeds distributed among the crew of 
the privateer. 

In fact, this solution 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 abound. On 16 December 1664 the Privy Council issued a 
General Reprisal Order in the name of Charles II authorizing retroactively 
the capture of Dutch vessels already taken without license by English 
privateers at the start of the second Anglo-Dutch War. 108 At the start of the 
third Anglo-Dutch War in 1672, Sir Leoline Jenkins sitting as a Judge in 
Admiralty allowed an English captor his privateer's share of a Dutch capture 
despite the lack of a commission, saying it was "out of grace " and because the 
captor was "then in the service of the king." 109 But all captures of enemy 
vessels during wartime were presumably "in the service of the king," and by 
this logic there would be very few cases in which commissions would be 
necessary at all, principally cases in which the accused "pirate" was merely 
setting sail in violation of other regulations, or was accused of "piracy " after 
an unsuccessful attack or attempt on a vessel later shown not to have been an 
enemy vessel. 110 Thus it appears that the requirement of a license or 
commission to exercise belligerent rights of capture at sea in the 17th century 
was not as rigid as some of the later rhetoric about license requirements make 
it appear. Kidd's problem was less his exceeding his license than in his 
converting the captured property to his own use without legal condemnation 
procedures required not only by the terms of the usual license (and his own 
commissions), but by any conception of legal rights of property that 
distinguishes between mere possession and other rights commonly associated 
with property, such as rights to future possession and rights to use even 
without possession. If this is correct, then a great deal of Lord Chief Baron 
Ward's charge to the jury in the Kidd case is exaggerated, and the final 
phrases 111 read in the context of the times do not make criminal all those acts 
not authorized by a commission, but make the commission to do some things 
relevant merely with regard to motive and other legal implications of things 
done without the authority of a commission; that is not a rigid positivist 
position, but almost a legal platitude. 

In the Kidd case, the essence of the distinction between a commissioner 
exceeding his authority and a "pirate" was conceived to be whether the 
accused took the captured valuables in to a proper tribunal for 
condemnation. If he did, regardless of the ultimate decision as to the 
legality of the capture, he was no pirate. If he did not, he would appear to 
have been a pirate as far as English municipal law was concerned. The 
action in excess of a commission that would turn a privateer to a pirate was 



100 The Law of Piracy 

not a question of whose goods or ships he might take, but what he did with 
them after the taking. 

This interpretation of Rex v. Kidd is confirmed by a short review of the use 
of licenses as a "police" tool of the centralizing government of England under 
the Tudors. This subordination of private "police" activity to public 
authority had begun in the earliest days of commissions aimed at hunting 
"pirates." It may be remembered that in 1511 King Henry VIII had 
commissioned John Hopton to 

seize and subdue all pirates wherever they shall from time to time be found; and if they 
cannot otherwise be seized, to destroy them, and to bring all and singular of them, who 
are captured, into one of our ports, and to hand over and deliver them ... to our 
commissioners. 112 

It was also pointed out that in a series of commissions and proclamations 
beginning in 1575 Queen Elizabeth had authorized various high officials to 
license privateers to capture "pirates," but had consistently maintained that 
no changes in title to any goods or vessels could occur unless the items had 
been first submitted to an English court for condemnation or equivalent legal 
proceeding; 113 that to the extent the legal opinion of David Lewes in 1579 
concluded that by the law of the sea any person might seize pirate goods 
without any commission, that opinion was ignored by the highest 
administrators in England; 114 that in 1589 an Order in Council declared that no 
title to goods derived from capture at sea unless decreed by an Admiralty 
court; 115 and that an Englishman could find himself in serious legal difficulties 
if he purported to hunt pirates without a commission after that time. 116 In 
those cases in which a prize was taken with the English captor's license under 
some cloud, as long as the prize was brought in to an English port for 
condemnation, there does not appear to be any case in which the captor faced 
significant difficulties. 117 

On this view of things, it was impossible to maintain the jurisdictional 
provisions of the statute of 1536 unamended, because taking the captured 
valuables to England for Admiralty condemnation was clearly impracticable, 
and sale without such proceedings would open the privateer to a charge of 
"piracy" even if he had done his best to assure the legitimacy of the taking. 
Moreover, for trials under the statute on a charge of "piracy," removal of the 
accused and witnesses to England was expensive and time consuming. And, as 
in the case of the possible dereliction by the Earl of Bellamont with regard to 
the French pass Kidd alleged to have been found in the Quedagh Merchant, 
serious injustice might be done to accused "pirates" simply through the 
vicissitudes of bureaucracy and transportation in the early 18th century (and, 
indeed, for two hundred years thereafter). 

This last difficulty was solved by a statute usually dated to 1700 118 
authorizing the holding of Admiralty Commissions to try "pirates" outside of 
England. That statute repeats the substantive terms of the statute of 1536 and 



Evolution in England 101 

adds provisions authorizing the establishment of colonial Admiralty courts, 
which could hear property cases in the usual Admiralty fashion. But, even 
more significantly from the point of view of this study, it uses the word 
"pirates, " for the first time in England, as a statutory word of art, prescribing 
punishment as "pirates" for those subjects or denizens of England who 
commit any act of hostility against other subjects of His Majesty at sea under 
color of a commission issued by a "forreigne prince or state or pretense of 
authority from any person," 119 and any captain or seaman betraying his 
trust. 120 This general language seems to include within the English definition 
of "piracy" acts within a single vessel not involving robbery, such as mutiny 
and barratry (embezzlement of ship or cargo by a captain or other person 
with limited rights of disposal). It thus revived the Coke-Hale definition of 
"piracy" as a form of "petty treason" including "mutiny." 121 

This statute was amended many times as the English (British, after 1707 and 
the Act of Union with Scotland) 122 modified their municipal law in various 
technical ways not pertinent to this study. 123 The next major adjustment of 
British municipal law to raise the question of the relationship between that 
law and the international law relating to "piracy " was not until 1825, when a 
bounty paid out of public money was authorized for the destruction of foreign 
"pirates." 124 

It is possible to conclude from the fact that the prescriptions of that 
statute were restricted to English subjects or denizens that the statute did 
not purport to incorporate into English law any particular rules of 
international law. It did not seek to define "piracy" in any sense that would 
imply an English assertion that the crime called "piracy" for purposes of 
English tribunals was equally punishable by those tribunals if the 
"criminal" were a foreigner acting outside the territory of England — or 
even within England. 

"Piracy" or "Felony" in English Law as Adopted in American 
Courts. The first known trial under the authority of the Act of 1700 was held 
in the new world. Captain John Quelch and some of his crew were tried in 
Boston beginning 13 June 1704. 125 Nine separate articles were levied against 
Quelch and his men with regard to actions taken by them against Portuguese 
victims (England being then at peace with Portugal) in November 1703 to 
February 1704. The points of similarity in eight of the nine charges against 
Quelch are the identical recitals: 

For that you, the said John Quelch, with divers others, ... at or near [such a place] ... by 
force and arms, upon the high sea (within the jurisdiction of the admiralty of England) 
[parentheses sic] piratically and feloniously did surprize, seize and take [a described 
vessel] . . . belonging to the subjects of the king of Portugal, (her majesty's good ally) 
[parentheses sic] and out of her, then and there, within the jurisdiction aforesaid, 
feloniously and piratically did, by force and arms, take [described articles of stated 
value]. 



102 The Law of Piracy 

The ninth article is the only one that separates "feloniously" from 
"piratically" and therefore seems significant. The difference is in the last 
clauses which say: 

. . . and then and there, within the jurisdiction aforesaid, did feloniously kill and murder 
the commander thereof, and wounded several others, and out of her piratically, by force 
and arms, did take and carry away [various listed items] contrary to the statutes in that 
case made and provided. 

The reference to statutes in the last line seems to relate only to this ninth 
article, and, if so, its meaning is obscure. If it is intended to apply to all the 
preceding articles charged against Quelch, it seems mere form; there is no 
express indication which precise statutes are intended, presumably the 
statutes of 1536 and 1700. 

It appears to have been the conception of the officials making the articles, 
that "piratically" referred to the taking of property by force and arms, and 
that meshes with the idea of "piracy" being the Admiralty term for robbery 
as stated by Sir Charles Hedges in his 1696 charge to the jury in the Dawson 
case. Killing does not appear to have been considered part of "piracy, " but to 
be included in the "felony" as well as the "murder" term of the statute of 
1536. Since neither "murder" nor "robbery" of a stranger was a "felony" in 
1536 and the statute of 1536 in fact does not use the word "piracy" in its 
substantive provisions, and uses the words "robberies and murders" 
directly, 126 this evolution of form with regard to the words " piratically" and 
"feloniously" needs some explanation. Apparently, the statute of 1700, 
having adopted the word "piracy" into the legal vocabulary in a way directly 
pertinent to the Quelch case, "piratically" was adopted in the articles to 
reflect the new statutory language relating to jurisdiction, and "feloniously" 
to reflect an evolving definition transferring the "petty treason" label to 
some serious crimes in which the legal results of "petty treason" were sought 
to be applied without all the feudal-status baggage of the phrase. 

The opening statement of Paul Dudley, Attorney General and Her 
Majesty's (Queen Anne's) Advocate for the Court of Admiralty, to the 
commissioners holding the trial indicates how far English thought had come, 
building on the misinterpreted excerpts of Roman opinion to make a 
municipal crime of "piracy," and then call it part of international law: 

The prisoner at the bar stands . . . charged with several piracies, robberies and murder, 
committed by himself and his company, upon the high sea (upon the subjects of the king 
of Portugal, her majesty's good ally) the worst and most intolerable of crimes that can be 
committed by men. A pirate 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; 
and therefore if a man that is a prisoner to pirates, for the sake of his liberty promise a 
ransom, he is under no obligation to make good his promise; for pirates are not entitled 
to law, not so much as the law of arms; for which reason it is said, 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, 



Evolution in England 103 

by hanging them at the mainyard; a sign of its being of a very different and worse nature 
than any crime committed upon the land; for robbers and murderers, and even traitors 
themselves, may not be put to death without passing a formal trial. . . . 127 

Aside from other errors or exaggerations, the notion that "pirates" could be 
hanged by whoever catches them in an attempt seems inconsistent with the 
terms of Kidd's commission to hunt down "pirates," which is certainly 
typical in this regard. That commission required Kidd "to bring, or cause to 
be brought, such pirates ... as you shall seize, to a legal trial" whether the 
pirate was taken in battle or otherwise. 128 Dudley's notion also seems 
inconsistent with the very idea that a commission was necessary to hunt 
"pirates," and, although the lack of a commission in many cases could be 
cured retroactively through a grant or by judicial reasoning, the centralizing 
positivist jurists and administrators from the time of Queen Elizabeth, a 
century and a quarter before, had insisted on the legal form being 
acknowledged. Dudley followed naturalist logic identified in this area with 
Charles Molloy. He appears to have felt that natural law rights of property 
and self-defense, possibly coupled with the sense of collective defense of 
property and life believed by naturalist philosophers of the time to underlie a 
hypothetical "social contract" 129 on which all political structures must rest 
for their natural law power to exercise law-making authority, were enough 
to justify the hanging of "pirates" defined as violators of those natural rights. 
But why he chose to express those sentiments before this court in this case is 
not known. The formal need for a commission before an Englishman could, 
by the municipal law of England, legally hunt pirates had been well 
established in practice by 1704. 

Quelch's defense went to the facts and the form of trial under the statute of 
1536. On those points his arguments were rejected and he was convicted. No 
question about the essential elements of the offense of "piracy" was raised nor 
any jurisdictional argument. 130 

The trials of the men associated with Quelch indicate some additional 
undercurrents associated with the conception of "piracy" in 1704. Three 
black slaves had been forcibly taken from their owners by Quelch and served 
as cooks and in other non-combatant capacities in the crew. Presumably they 
had no share of the spoils. They were acquitted. The record does not indicate 
the basis the court felt that it had to apply any system of law to these men, 
who, by the law of Boston at the time were not subjects of England. The 
Queen's Advocate (Dudley?) following the naturalist approach adopted for 
the Quelch trial, addressed the point: 

[T]he three prisoners now at the bar are of a different complexion, it is true, from the 
rest that have been arraigned upon these articles; but it is very well known, that the first 
and most famous pirates that have been in the world were of their colour; 131 and negroes, 
though slaves, are as capable of taking away the lives and estates of mankind, as any 
freemen in the world. . . . 132 



104 The Law of Piracy 

The implication, that international law applied to all men regardless of their 
legal status of bondage under any particular municipal law, and that "piracy" 
was a crime under a naturalist version of international law, does not appear to 
have been the subject of any comment at the time. The positivist counter- 
model, that the English law of "piracy" under the various statutes of the 
realm applied to slaves as to free men as a matter strictly of English law, was 
not posed either. 

Six Englishmen members of Quelch's crew were then tried and convicted 
of "piracy" despite their testimony that they took no active part in the 
captures. The tribunal pressed them on two points: (1) Did they ever protest 
against the action; and (2) Did they take a share of the spoils. The evidence 
was that they made no protest and did share in the takings. Several other 
members of the crew then changed their not guilty pleas to guilty, and two 
other trials were held; all were sentenced to death. There were two final 
acquittals; one, the ship's clerk who appears to have been sick throughout the 
entire voyage and took no part in the captures and received no share of the 
takings; the other, a servant boy only fifteen years old who was adjudged not 
guilty as a matter of the court's indulgence. 133 

The Classical Publicists: Zouche to Bynkershoek 

The "Law of Nations." The phrase "law of nations" in 1705 was itself 
ambiguous. Richard Zouche, an English Admiralty judge and civilian, 
distinguished in 1650 between "the law of nations" and "the law between 
nations. "The latter, which he called in Latin "Jus inter Gentes," he regarded as 
the descendant of the Roman "Jus Feciale" and "has to do with the conditions 
of kings, peoples, and foreign nations, in fact with the whole law of Peace and 
War." The former, the "law of nations," he defined as: 

[T]he common element in the law which the peoples of single nations use among 
themselves; . . . the law which is observed in common between princes or peoples of 
different nations. 134 

This use of language would imply that to the degree "piracy" is regarded as a 
crime against the "law of nations, " it is merely an act proscribed by the laws 
of all separate states; the fact that an act is forbidden by all states does not 
address the problem of officious intermeddling — of one state applying its 
version of the law through its tribunal to a person acting beyond the range of 
that state's legal interest. 135 

To natural law jurists, there are two ways to bridge this gap in logic. One is 
to eliminate the distinction between the "law of nations" and the "law 
between nations" posited by Zouche. That had been the course taken by 
Samuel Pufendorf in 1660 on the argument that the substance of both systems 
of law rested on "reason" alone, and that therefore there could be no 
differences in the law based on differences in the character of the actors, 
which he regarded as small: 



Evolution in England 105 

. . . [T]he Law of Nations ... in the eyes of some men, is nothing other than the law of 
nature, in so far as different nations, not united with one another by a supreme 
command, observe it, who must render one another the same duties in their fashion, as 
are prescribed for individuals by the law of nature. On this point there is no reason for 
our conducting any special discussion here, since what we recount on the subject of the 
law of nature and of the duties of individuals, can be readily applied to whole states and 
nations which have also coalesced into one moral person. Aside from this law, we are of 
the opinion that there is no law of nations. . . . 136 

From this point of view, the problem of intermeddling could be avoided by 
regarding each country's law applying to "piracy" as a national means of 
applying the underlying natural law to individuals who have transgressed it; 
there would be universal "standing" to apply national law because the 
national law is a mere expression of the universal natural law applied by one 
subject of that law (the state) to another (the individual "pirate"). The special 
interest of the state derives from the universality of the system. 

Another way to bridge the gap in logic was the way expressly adopted by 
none at this time, but implicit in much naturalist writing, to call the right to 
commerce a "natural right "justifying "war" with states impeding commerce 
between willing partners. 137 If war against states could be justified on the basis 
of interference with the natural right to trade, a fortiori it would seem that 
those obstructing such trade without commissions issued by the authority of 
states through their governments could be blown away. If war against them 
was not legally appropriate, then the "pirates" were not protected by the 
laws of war and could simply be hanged when captured. From this point of 
view, the criminal law procedures by which "pirates" were condemned and 
hanged were mere municipal law safeguards against the abuse of the 
authority every man had to destroy those who obstructed trade, "pirates." 

It is noteworthy that both these lines of legal thought rest on calling 
"piracy" a crime under the law of nations, the "law of nations" being 
conceived as a natural law system binding on all men in all places because 
based on reason. 138 

The relationship between municipal law and international law so central to 
an understanding of the conception that "piracy" should be suppressed and 
that the normal jurisdiction of municipal law tribunals would not suffice to 
suppress it when foreigners and possible foreign commissions were involved, 
was never fully resolved during the 18th century. Individual jurists certainly 
had their own favorite jurisprudential models into which they fit "piracy" for 
the sake of particular cases, legislation, or treaties. But the fundamental 
orientation of the "positivists, " to whom all questions seemed best considered 
as questions of national policy, and the orientation of "naturalists," to whom 
all questions seemed best considered as questions of international justice and 
natural rights, were irreconcileable. 

The Growth of Positive Law Concepts as an Implication of National 
Sovereignty. Those who tried to raise their sights above the jurisprudential 



106 The Law of Piracy 

dogmas of various advocates and political demands of practical statesmen and 
their national constituencies, restricted their analyses to the specifics of 
individual cases and incidents, leaving overall patterns to others. Typical of 
this, and most influential in later times, was Cornelius Bynkershoek, a Dutch 
jurist whose major work, Questionum Juris Publici, appeared in 1737. 139 In 
addition to arguing on the basis of positivist, policy-oriented logic that the 
Barbary states were not ''piratical" in any legal sense, 140 he began with the 
proposition that "those who rob on land or sea without the authorization of 
any sovereign, we call pirates and brigands." 141 In later passages he uses the 
world "pirates" only in connection with those who sail, but he leaves 
unanswered the question as to whether "pirates" who, once having sailed, 
commit depredations only in raids ashore, are punishable as if their 
depredations were at sea — whether the word "pirate" applies to all who 
begin their depredations from a ship or those who make a mere sea-departure 
without a license from some Dutch port regardless of the place of their 
depredation. To avoid the problem he asserts a simple positivist position based 
on Dutch municipal law: "[W]e punish as pirates those who sail out to 
plunder the enemy without a commission from the admiral, and without 
complying with . . . the rules of the Admiralty of . . . 1597. " 142 He then cites 
other Dutch statutes as authority for terming "pirates" those Dutchmen who 
sail under a commission from a foreign prince or of several princes. 143 His 
supporting argument, that "it is indeed very reasonable that those should be 
treated as pirates" because "if this were permissable they might plunder 
neutrals and bring our state into war with other nations, " 144 argues the Dutch 
municipal legal policy to be reasonable to curb the depredations of Dutch 
nationals even if those Dutchmen are not "criminals" (because licensed by a 
sovereign) at international law. But Bynkershoek did not assert that The 
Netherlands had a duty at international law to restrain the licensed activities 
of Dutchmen abroad. Ultimately, Bynkershoek's logic does not unite 
international and municipal law, but asserts the dominance of policy for 
international affairs and municipal law as the basis for controlling Dutch 
nationals abroad. Support for this analysis lies in Bynkershoek's adverting to 
the fact that 

There are also various other persons who are punished as pirates on account of the 
atrocity of their crimes, though they are not actually pirates, as for instance those who 
sail too near the land contrary to the prohibition of the sovereign, . . . commit frauds in 
matters of insurance . . . and also those who cut the nets of the herring-fishers. . . . 145 

It is interesting confirmation of arguments presented earlier with regard to 
the evolution of English conceptions that the word "pirate" seems to have 
been used in a promiscuously pejorative sense in the late 16th century, and had 
its meaning narrowed somewhat in 1696, presumably in coordination with the 
English war against Louis XIV over the exile of James II at that time. 146 But 
the narrowing was not in the direction only of making "piracy" the proper 



Evolution in England 107 

legal term for robbery within the jurisdiction of the Dutch Admiralty; it also 
followed the English view that certain forms of licensed activity involving 
depredations by foreigners against foreign vessels might be denominated 
"piracy" and treated as criminal by the municipal law of the prescribing 
state. Where the English prescriptions arising out of the struggle over the 
Stuart exile had focused on the legal power of the English government to 
consider null a commission issued by an unrecognized "sovereign" (James II) 
or to consider as "piratical" even in the absence of legislation the taking by an 
Englishman of a license from the King of France to raid English shipping, the 
Dutch legislation cited by Bynkershoek rested on Dutch jurisdiction to 
prescribe with regard to belligerent action by foreign-licensed foreigners in 
neutral Dutch coastal waters. It seems that once the conception was accepted 
that the word "piracy" would be a useful pejorative that could be applied 
with capital legal results by an act of municipal legislation, the evolution of 
the word was away from "normal" municipal law crimes (whether at sea or 
not) and towards the political activities of individuals. Under the system of 
letters of marque and reprisal by which some political activities were highly 
profitable to individual adventurers, the word "piracy" seems to have been 
used to identify such adventurers with motives of base profit when they were 
fighting for causes not approved by the municipal legislators, and the 
definitions of "pirates" as "robbers within the jurisdiction of the Admiralty 
courts" were simply expanded to catch those adventurers in the legal web. In 
this evolution, the net-cutters and insurance fraud criminals proved to be too 
small to remain enmeshed in that web, and the older laws came to seem an 
historical oddity as the connotations of the word "pirate" changed. 

Bynkershoek also discussed the jurisdictional issues. He asserted that a 
foreigner committing depredations on Dutch property could properly be 
tried by a Dutch tribunal "if he is arrested among us, " but suggested that if he 
had a commission, even if he had exceeded it, there would be some doubt. He 
referred to a negotiation between the Dutch and English in 1667 concerning 
the disposition at law of privateers who had not stopped after their 
commissions expired at the end of the second Anglo-Dutch War: 

The English contended that the sovereign who had given the letters ought to have 
jurisdiction; the envoys of the States-General urged that those who committed hostile 
acts without a legitimate commission from their sovereign, should be treated as pirates. 
That it was the law of nations that such could be punished by any sovereign into whose 
hands they chanced to fall. . . . The French envoys at that time concurred in this view, 
and this principle was accordingly adopted by the English and the States-General. 147 

Since only the sovereigns whose subjects were victims of the unlicensed 
depredations were involved, and there is no suggestion that France should 
have prosecuted English privateers whose victims were only Dutch, it is 
difficult to say just how far this sweeping assertion was intended to carry. No 
cases are cited of "pure" universal jurisdiction by Bynkershoek or any other 



108 The Law of Piracy 

writer of this time despite the broad statements and possible cases, like the 
embarrassing Green case in Scotland, 148 from which the appearance of 
support in practice could have been derived. The broad assertions coupled 
with the refusal to support them with possible cases, and the total absence of 
statutory support for judges' or prosecutors' grand assertions in this regard, 
seem anomalous. 

Bynkershoek expressed some doubt that a privateer exceeding his 
commission was necessarily a "pirate," and seemed to regard the procedure 
by which the sovereign issuing the commission would be the sovereign whose 
tribunals should hear the case as the best solution. This is not explained except 
by citation to a peace-treaty of 1662 between France and the Netherlands in 
which it was agreed that only the sovereign furnishing a commission should 
hear any cases of prize resting on the validity of the commission. 149 From his 
point of view, if that sovereign turned the prize back to its prior owner, there 
would be no issue to resolve, while if the unauthorized taking were upheld, 
whatever problems might arise could be discussed as a possible international 
delict between the two sovereigns involved. This seems to treat the question 
of commissions as simply an issue of property law, not of "piracy " at all. Since 
a guilty intention is required for any criminal conviction, perhaps that is a 
sensible approach; but it is surely more congenial to "positivist" adminis- 
trators than to "naturalists" concerned with "justice" and the application of 
the "law of nations." 

Bynkershoek also dealt directly with the question of jurisdiction, terming 
"difficult" the question of whether a foreigner who has committed 
depredations upon other foreigners could be tried by Dutch courts. He stated 
it as a dilemma: 

If . . . the laws ordain that no one may sell ships and goods captured on a foreign 
commission, except when condemned at a port of the sovereign issuing the commission, 
it might seem unjust to give an action against the captor, either to the government, on a 
criminal charge, or to the foreign owners of ships and goods, for the damage suffered. 
Both foreigners ought to have the same rights. . . . And yet it would be hard and 
unexampled to deny access to the courts to the owners of the ships and goods who found 
their property here in the hands of a foreigner who might depart at any moment. And if 
you grant that, you can hardly refuse the captor. 150 

There is substance to this argument if "piracy" were essentially a matter of 
licenses, as Bynkershoek and the other positivists conceived it. There seems 
little substance when the argument is applied to totally unlicensed 
depredations; and that is a question disposed of in England by the Statute of 
the Staple in 1353, 151 which Bynkershoek did not address. 

The Classical English Synthesis: Blackstone and Wooddeson. The 
English law was summarized in its classical form by both Sir William 
Blackstone and Richard Wooddeson, the first and third Vinerian Professors 
of English Law at Oxford University. Blackstone, publishing in 1765-1769, 152 



Evolution in England 109 

took a basically naturalist view of the "law of nations" adopting the 
underlying concept that the "law of nations" is essentially the national law of 
many states and not the law between states: 

But since in England no royal power can introduce a new law, or suspend the execution 
of the old, therefore the law of nations (wherever any question arises which is properly 
the object of its jurisdiction) is here adopted in its full extent by the common law, and is 
held to be a part of the law of the land. And those acts of parliament, which have from 
time to time been made to enforce this universal law, or to facilitate the execution of its 
decisions, are not to be considered as introductive o{ any new rule, but merely as 
declaratory of the old fundamental constitutions of the kingdom; without which it must 
cease to be a part of the civilized world. Thus in mercantile questions, such as bills of 
exchange and the like; in all marine cases, relating to freight, average, demurrage, 
insurances, bottomry, and others of a similar nature; the law-merchant, which is a 
branch of the law of nations, is regularly and constantly adhered to. So too, in all 
disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other 
rule of decision but this great universal law collected from history and usage, and such 
writers of all nations and languages as are generally approved and allowed of. 153 

Blackstone considered that there were three offenses that could properly be 
termed crime-like "offences" against the law of nations: (1) Violations of safe 
conducts (i.e., laisser passer), (2) infringement of the rights of ambassadors, and 
(3) piracy. His brief comments on piracy mix natural law and positive law 
concepts in a strange amalgam: 

Lastly, the crime of piracy, or robbery and depredation upon the high seas, a pirate 
being, according to Sir Edward Coke, hostis humani generis. 154 As therefore he has 
renounced all the benefits of society and government, and has reduced himself afresh to 
the savage state of nature, by declaring war against all mankind, all mankind must 
declare war against him: So that every community hath a right, by the rule of self 
defence, to inflict that punishment upon him, which every individual would in a state of 
nature have been otherwise entitled to do, for any invasion of his person or personal 
property. . . . 

The offence of piracy, by common law, consists in committing those acts of robbery and 
depredation upon the high seas, which, if committed upon land, would have amounted 
to felony there. But by statute, some other offences have been made piracy also. . . . 155 

To understand Blackstone 's thought, and the American thought that grew out 
of the immense influence of Blackstone 's Commentaries in the early days of our 
Republic, it must be borne in mind that his use of the phrase "law of nations" 
assumed the supremacy of municipal law in particular whatever the basis in 
policy, reason or historical practice for the identity of prescriptions applied 
by the courts of different nations. Moreover, his use of the phrase "common 
law" is certainly not the same as the technical usage of Lord Coke, to whom 
the "Common Law" of England meant the law applied by English "Common 
Law" courts, as distinguished from the other laws applied in England by 
Admiralty, Equity and other of the King's courts. To Blackstone, the law 
merchant was part of the law of nations adopted into the English "common 



110 The Law of Piracy 

law" because interpreted and applied throughout England by English courts; to 
Coke the law merchant was applied in the courts of the Staple by administrators 
appointed for the purpose, and was not part of the Common Law system in 
England. 156 Similarly with "piracy. " Thus Blackstone's calling piracy an offense 
by common law means merely that it was an offense punishable in England by 
English courts, and to the degree not based on statute, was capable of being 
refined and modified by judicial interpretation. 

Blackstone's social contract naturalism seems to leave all the questions of 
Bynkershoek unanswered. If the right of a community to exercise its 
jurisdiction over a "pirate" rests on an a priori rule of self-defense, as Blackstone 
said, then that jurisdiction rests on the state exercising it being a state victimized 
by the particular "piracy" that is the subject of the trial: that state must have had 
its "person or personal property" invaded by the "pirate." Furthermore, the 
law of self-defense in England and many other places is very limited in its 
application, essentially to cases of inescapable threat; it does not authorize 
universal policing of a community by a strong policeman without authority 
derived from community consent through the positive law. It does not justify 
officious intermeddling or universal jurisdiction in the absence of a legal interest 
in the case. 

Finally, the arguments based on war imply that the law of war applied to 
relations between "pirates" and the rest of mankind. That would comport with 
Roman writings, but does not seem to have been what Blackstone really had in 
mind, since criminal trials are not the result of capture in war. In sum, the simple 
language of Blackstone in this area disguises the legal complexities really 
involved without giving any orientation that would help lawmakers or 
attorneys find their way through the thickets of the law. 

Richard Wooddeson, the third Vinerian Professor of English Law at Oxford, 
began lecturing in 1777, and his monumental treatise derived from thirteen 
years of lecturing was published in three volumes in 1792 (volume I) and 1794 
(volumes II and III). 157 To Wooddeson, the law of nations was not merely the 
law of each state conforming in substance to the law of other states. It included 
also what Zouche called the law between states: 

The law of nations is adopted and appealed to by civilized states, as the criterion for 
adjusting all controversies proper to be so decided. This is the rule by which the property of 
captures at sea is determined, more especially when the subjects of independent powers are 
interested in the litigation. In such case neither the customs of the British admiralty, nor 
British acts of parliament, can, as such, be of sufficient authority and avail. But the law of 
nations is part of the law of England. 158 

From this point of view there does not appear to be much distinction between 
the law of nations in Blackstone's sense and the law between states, and it would 
seem as if Wooddeson were prepared to use that law, whatever it was, as a 
looming omnipresence hovering over English law as a basis for interpreting, and 
perhaps overriding, the customs of the Admiralty and even acts of Parliament. 



Evolution in England 111 

Turning to piracy directly, Wooddeson defined it: "Piracy, according to 
the law of nations, is incurred by depredations on or near the sea, without 
authority from any prince or state." 159 His authority for that statement was 
Jenkins and Molloy, whose generalities he quoted raising some technical 
issues that seem of marginal importance to this study. 160 He agreed with 
Bynkershoek and Jenkins that the Barbary states cannot be "piratical" in any 
meaningful legal sense, 161 applying Cicero's definition of a state: "They have 
a fixt domain, public revenue, and form of government. " In support of this 
conclusion he cited European state practice of treating the Barbary 
communities as states with which they "sometimes carry on war, sometimes 
stipulate for peace, with them as with other nations." 162 

The major contribution of Wooddeson to the evolving conception of 
"piracy" came from his notion of general international law, the law of 
nations, 163 being a single system including not only the law between states and 
the strictly positivist coordinated law of many states, but also a degree of 
coordination between the two. The issue on which he focused was whether a 
license which was technically inapplicable, and therefore could not be used to 
exculpate a captain of a charge of "piracy," was really necessary if in fact the 
captain did not hold himself out to be an enemy of all mankind, robbing 
indiscriminately, or, indeed, robbing anybody at all, since he took all his 
captures in to proper courts for prize adjudication. There was, therefore, a 
taking of possession of the property of others, but not of full property rights; 
not of a right to transfer title. It was, in a sense, Sir Francis Drake's case, 
raised to a new level of sophistication: 

His majesty granted letters of reprisal to sir Edmund Turner and George Carew against 
the subjects of the States General, which grant was called in by proclamation, and 
superceded [spelling sic] under the great seal. Then Carew, without Turner, having 
deputed several to put in execution the said commission, who acted under it 
accordingly, and being indicted for piracy, it was resolved by all the judges and the rest 
of the commissioners then present, that the procedure of the captain and his mariners 
was not a felonious and piratical spoliation, but a capture in order to adjudication [sic], 
and tho' the authority was deficient yet not being done animo depredandi, they were 
acquitted. 164 

Wooddeson approved of this result, commenting that "This case is a strong 
proof of the efficacy of a public or national commission," implying that had 
the case been left to positivist-minded administrators concerned with 
assuring the supremacy of the commission-granting (and withdrawing) 
authority, the result would have been different, and, to the extent different, 
unjust. To Wooddeson, then, to be "piracy" there had to be a taking that was 
both unlicensed and animo deprendandi (or animo furandi, to use the more familiar 
phrase); the common law "robbery" elements had to be there as well as the 
positive law departure from authorization. To further isolate the definition 
and remove from it the positivist emphasis on commissions, Wooddeson notes 



112 The Law of Piracy 

that in another case in 1782, an indictment of a British subject (Luke Ryan) on 
a charge of "piracy" for taking a Dutch commission was in fact not an 
indictment "for piracy, generally, by the law of nations, but for that being a 
natural born subject he piratically, & c, against the form of the statute" [emphasis 
sic] did various things. Where the positivist officials might have wanted to 
extend the pejorative name and legal results of "piracy" to this action of a 
British subject which had been forbidden by municipal statute, to a naturalist 
like Wooddeson, the use of the word was merely polemical when added to a 
statutory charge that was not directly related to his conception of "piracy" 
under the hovering principles of universal justice he included within his 
conception of the law of nations. 165 

Searching for other cases in which the form of the commission was not the 
key to attaching the name and legal consequences of "piracy," Wooddeson 
referred to Palachie's Case as recited by Coke in his Fourth Institute. 166 
Wooddeson's conclusion is sweeping and undoubtedly correct, that in order 
to be "piracy" in England, the taking must have been committed without 
color of belligerent rights. Even in England itself, he point out, "[T]he law of 
nations is . . . understood to tolerate at least the forfeiture and capture of 
enemy's ships and goods in time of open hostilities, without the sanction of a 
special [sic] commission." 167 A general proclamation would suffice, and, 
indeed, what court to which "enemy" goods or ships were submitted for 
prize proceedings would really refuse to support an English captor acting 
pursuant to English policy and submitting his takings for proper distribution? 
No such case has been found. 

The implications of this position include a logical shift and coming together 
of the relative jurisprudential positions of positivist and naturalist thinkers. 
By regarding the requirement of a "commission" as simply a special English 
municipal law provision interpreted strictly against English depredators 
pursuing a "reprisal war" 168 but loosely in case of a general public war, and 
not applying at all in English courts in cases of belligerency between foreign 
powers alone, 169 the basic positivist scheme could be maintained. But the 
sweeping assertions of Jenkins and other early positivists are revealed as far 
too broad. On the other side, demanding that the English Common Law of 
robbery and its requirement of animo furandi be applied before any taking, 
commissioned or not, could be deemed "piracy" in the absence of statute 
calling something else "piracy, " and regarding the English law in this phase as 
a mere municipal law expression of underlying natural law principles, 
undercut the search for a natural law of "piracy" and diminished the impact 
of natural law principles of self-defense and property rights on the definition. 
To the degree that English law was conceived as the embodiment of natural 
law, the municipal law of England as expressed through the sort o{ 
authoritative pronouncements in statutes and cases familiar to positivist 
jurists and statesmen made it possible to derive the supposed international law 



Evolution In England 113 

of "piracy" from English precedents and make it appear part of a universal 
"law of nations" in the Zouche-Blackstone sense. The principles of 
international law could then be regarded as not a limit on English law, but as 
English law itself which all other countries were bound to follow because the 
sources and logic of English law were universally valid even if English 
jurisdiction was limited. Wooddeson's logic must have seemed very 
persuasive to both natural law and positive law English jurists. 

As to universal jurisdiction and legal interest, Wooddeson was cautious: 

A charge of piracy may properly be exhibited in any country, to which either the party 
accused, or the owner of the goods, belongs. But whether the law of nations will allow 
the fact to be tried in a country where they are both aliens, and which therefore seems to 
have nothing whereon to ground the reasonableness of its jurisdiction, is left undecided 
by the judicious Bynkershoek [sic]. 170 

He did support universal jurisdiction in principle on the ground that the seas 
are within the territorial jurisdiction o{ all princes, and given the right 
nationality of the vessels or persons involved, offenses on the high seas could 
certainly be tried in any port under tribunals deriving their competence from 
municipal law. But that logic seems to miss the point by confusing various 
kinds of jurisdiction. The Dutch Admiral might have jurisdiction equal to that 
of the British Admiral on the high seas, but his prescriptions with regard to 
events wholly within a British ship in those seas would have been hotly 
rejected by a British court; and Dutch intermeddling in a legal dispute 
between Great Britain and France would have been resented even (especially) 
if the action giving rise to the dispute occurred entirely on the high seas 
(however defined). In sum, the reference to territoriality as the basis for 
universal jurisdiction does not reach the true issue, which is legal interest in 
the case. 

The wider assertions of British legal interest, amounting in a sense to 
assertions of British jurisdiction to rule all the seas to the exclusion of 
inconsistent foreign law even on board foreign vessels, grew in the nineteenth 
century and found their limits. But before analyzing those assertions and their 
limits, it is important to understand the other great stream of jurisprudential 
thought and practical action growing out of English writings and precedents; 
the law and policy regarding "piracy" of the newly independent United 
States of America. 

Notes 

1. William Wynne, The Life of Sir Leoline Jenkins . . . (1724), Vol. I, pp. xii-xiii, xl; 10 DNB 739-742. 

2. Wynne, op. tit., Vol. II, p. 791. 

3. Cornelisz Bynkershoek, Questionum Juris Publici (1737), Book I, ch. XVII (Tenney Frank, transl.) 
(CECIL 1930), Vol. II, p. 99. See text at notes 139-151 below. The passage in Gentili's works that 
Bynkershoek cites is the first of the Spanish Advocate's Pleadings analyzed in the text at note 1-105 above. 
There is no mention of Gentili's altered views. 

4. William Oldys (spelled Oldish in the Report in 12 Howell's State Trials 1269) is described as "an eminent 
civil lawyer" in 14 DNB 1013. Despite the outcome of the discussion to be retold below, in which Dr. 



114 The Law of Piracy 

Oldys was himself nearly accused of treason by some members of the Cabinet Council, and was removed 
from the list of Advocates of the Admiralty, he survived well, and had enough reputation to run 
(unsuccessfully) for Parliament as a member for Oxford University in 1705. He died aged 72 in 1708. Id. 

5. The civil lawyers, i.e., lawyers expert in Admiralty, Ecclesiastical and Roman law, were regarded 
as expert also in international law. The most learned, all with Doctoral degrees (D.C.L. from Oxford or 
LL.D. from Cambridge) organized themselves in what was called "Doctors' Commons" and were 
frequently consulted by the Crown on questions of international law. See 3 McNair, International Law 
Opinions (1956) 408-420. 

6. Tindall's (spelled Tindal in 19 DNB 883; his biography is at pp. 883-885) career was interesting. He 
turned Catholic during the reign of James II and abandoned that religion for the Church of England at 
about the time James was deposed and Catholicism became unpolitic again. He was only 36 years old at the 
time of this incident in 1693. Oldys was near 60. 

7. 2 Marsden, Documents . . . 146-148. Tindall's opinion is listed with the majority although in substance 
he certainly dissented. Is it possible that he falsified this entry after the opinion was formally presented? 

8. Secretary of State and member of the Privy Council. Trenchard was a very active politician who had 
had to flee the country in 1685 when his involvement in the Monmouth revolt against Charles II was 
discovered. A devout Protestant, he was bitterly opposed to King James and his supporters. 19 DNB 
1123-1125. 

9. See note 4 above. 

10. It has been impossible with reasonable effort to identify these civil lawyers. 

11. 12 How. St. Tr. 1269-1275. The actual proceedings in the trial are not provided. The eight Irish 
"pirates" were named John Golding, Thomas Jones, John Ryan, Darby Collings, Richard Shivers, Patrick 
Quidley, John Slaughter and Constantine de Hartley. 

12. An original copy of Tindall's Essay has not been found. This version, cited to pp. 25-30 of the Essay, 
appears in 12 How. St. Tr. 1271-1274 as a very long footnote. The quoted passage is in col. 1272. The same 
excerpt is printed (with some minor editorial differences) in 2 Marsden, Documents 142-146. 

13. 12 How. St. Tr. 1271. 

14. 28 Hen. VIII c. 15 (1536), reproduced in Appendix I. A below. 

15. It is interesting that Coke's analysis and Hale's adoption of it as recorded in the 1685 edition current in 
the 1690s was not mentioned in this discussion. See Coke, Third Institute 113; 1 Hale Pleas of the Crown (1685 ed.) 
23, 77-78. Presumably the reason was that the civilians were focusing on "piracy" as a question of the legal 
power of foreign sovereigns to issue privateering licenses, and whether a contender for the English crown 
could be considered a foreign sovereign in England when acting as if he were the sovereign of England in 
disregard of the constitution under which his acts were being measured. That is an interesting legal question, 
but did not involve the English municipal law of treason directly; indeed, Charles I having been beheaded for 
"high treason" in 1649 under a definition that supposed him to be levying war against the kingdom, the jurists 
of 1693 did not want to raise the question again. The Lords and Common Law people involved presumably did 
not want to be reminded that Coke defined "piracy" as a species of "petty," not "high," treason, and thus the 
entire category would seem to have been irrelevant to criminal charges brought against those whose real 
offense was felt to be "high treason." See text at notes 19 sq. below. 

16. This was, of course, the incident referred to by Gentili and discussed in Chapter I at note 1-100 above. 
The same passage of Gentili is cited by Tindall. 

17. 12 How. St. Tr. 1273-1274. 

18. Id., col. 1274. 

19. 25 Edw. Ill statute 5 c. 2 (1352), 2 Pickering, The Statutes at Large 50-52 (1762). See note 1-201 above. 

20. 12 How. St. Tr. 1275-1279. The quoted passage is in col. 1278. 

21. The appeals petition was rejected by the House of Lords and of the defendants, "some of them, if not 
all, were executed." Id., col. 1280. Some clue as to the emotional issues at play in that rejection might be 
seen in Tindall's Essay, which concludes by comparing Kingjames's claim to continued political authority 
to "the charms, or indelible characters, the Papists say, are inseparable from the persons of their priests," 
saying such a persistence of powers, "whatever it be in ecclesiasticals, is no small bigotry and fanaticism in 
civil affairs. And it is the height of folly, madness, and superstition, to believe that the people, who have 
entrusted some one amongst them with power for no other end but for protecting them, can, upon no 
account whatsoever, resume it. "Id., col. 1274. It might be suggested, however, that to treat the struggle as 
ended in fact with the Parliament victorious was premature in 1693. 

22. See note 1-201 above. 

23. Coke, Third Institute 111. 

24. 5 Pickering, op. cit. 199 (1763): 

Foreasmuch as some doubts . . . have been moved, That certain kinds of treasons . . . 
committed out of the King's majesty's realm of England, and other his Grace's dominions, 
cannot ne may be [sic; by?] the common laws of this realm be enquired of, heard and 



Evolution in England 115 

determined within this said realm of England . . . [ Enact] That all manner of offences, being 
already made and declared . . . treasons . . . and done perpetrated or committed ... by any 
person or persons out of this realm of England, shall be from henceforth enquired of, heard 
and determined before the King's justices of his bench ... or else before such 
commissioners, and in such shire of the realm, as shall be assigned by the King's majesty's 
commission, ... in like manner and form to all intents and purposes, as if such treasons . . . 
had been done . . . within the same shire . . . Provided . . . that if any of the peers of this realm 
shall be indicted of any such treasons . . . [they shall have] trial by their peers ... as hath 
heretofore been accustomed. 

25. Coke, Third Institute 113. 

26. The text of the pertinent part of Coke's short analysis is in note 1-201 above. 

27. 7 Will. Ill c. 3 (1695) 9 Pickering, op. cit. 389 sq. (1764). The "Act for regulating of trials in cases of 
treason and misprision of treason" takes the odd form of setting forth the requirement of two witnesses to 
the overt act unless the defendant confess or refuse to plead, and provides for jury trials (and trial of peers 
before the House of Lords) in capital cases. The trials were still held by royal commissioners as judges and it 
is difficult to understand how the new procedures differ from the ones established in 1535 and repeated in 
1536 for "treasons" along with "robbery and felony" cases, except that the jurisdiction of the new 
"treason" commissioners was not restricted by statute to the traditional Admiralty jurisdiction. The aim of 
the new statute seems to have been less to catch James's (and Louis XIV's) licensed privateers acting at sea, 
than to catch Englishmen (and Irishmen) adhering to James in France. 

28. 13 How. St. Tr. 485. Among the many points argued in the case was the question of the tribunal's 
jurisdiction to hear a treason indictment. The discussion was short but illustrates the technical problems: 

Mr. Phipps [Vaughan's defense attorney]. Then next I am in your lordship's judgment, 
whether the statute of 28 of Hen. 8, by which captain Vaughan is tried, is in force, and be not 
repealed by the 1st and 2nd of Philip and Mary, which saith, that all trials, in cases of 
treason, shall be at the common law. Now, by the common law, before the statute of 28 
Hen. 8, treason done upon the sea was tried before the admiral, or his lieutenant; and my 
lord Coke, in the 12 Rep. in the case of the admiralty, saith, the jurisdiction of the admiralty 
is by the common law. By the statute 33 [sic; 32? 35?] Hen. 8, c. 4, treason committed in 
Wales, might be tried in what county the king would assign; but since the statute of Philip 
and Mary, it must be in the proper county; so that we are in your lordship's judgment, 
whether the statute of 28 Hen. 8 be in force; and whether, since the statute of 1 and 2 Philip 
and Mary, treasons done upon the sea, ought not to be tried before the admirals or anciently 
at the common law [instead of before a special tribunal appointed by the crown to replace 
admiralty courts in some cases only]. 

L.C.J. [Lord Chief Justice Sir John Holt of King's Bench, President of the tribunal]. This is 
treason by the common law, and the trial is by the method of the common law. 

Mr. Phipps. It is true that my lord Coke, and other authorities say, that the statute 35 Hen. 8, 
for trying treasons committed beyond sea, is not repealed by the statute of 1 and 2 Philip and 
Mary; but they do not say that this [part of ? the] statute is not repealed by the statute of 
Philip and Mary; and the books being silent in this, is the reason why I propose this question 
for your lordships' judgment. 

L.C.J. It is no more a question than the trials of foreign treason, and then the determination 
of the trials upon the 35th [Hen. 8?] determines the question upon this. 

That is the complete discussion related to the point. Id., cols. 533-534. The statute of 1 & 2 Philip and Mary is 
apparently 1 & 2 Philip and Mary c. 10 (1554) (6 Pickering, op. cit. 53 (1763)), sec. VII of which provides that 
"all trials . . . for any treason, shall be had and used, only according to the due order and course of the 
common laws of this realm ..." (p. 54). Other statutes pertinent to the evolution of the procedures for 
handling "treason" in England, such as 32 Hen. VIII c. 4, and 33 Hen. VIII c. 20, 23, seem too far removed 
from this study for further discussion. The statute cited by Phipps, 33 Hen. VIII c. 4, is hopelessly 
irrelevant. It deals with the repair of decayed houses in England and Wales. The statute dealing with 
treasons committed beyond the sea is 35 Hen. VIII c. 2 (1545). 

29. See note 1-201 above, reference to the "Normans, who had revolted in the reign of king John," Coke, 
Third Institute 113. 

30. 13 How. St. Tr. 503. 

31. Id. passim, esp. cols. 495-499, 534-535. Dr. Oldys played a prominent part in pressing the civilian 
viewpoint. 



116 The Law of Piracy 

32. 11 & 12 Will. Ill C. 7 sec. viii (1698-1699); dated to 1700 in 10 Pickering, op. at. 320 (1784) and 
normally referred to that latter year. It is indexed in the official Chronological Table oj Statutes as 11 Will. Ill c. 
7 (1698). Reproduced in Appendix I.B below. 

33. See, e.g., The Journey of Wen-Amon to Phoenicia (c. 1100 B.C.?) in 1 Pritchard, The Ancient Near 
Hast (1958) 16-24. 

34. See text at notes 1-170 sq. above. 

35. See text at note 1-192 above, Proclamation of 1599. 

36. Lord Admiral Charles the Earl of Notingham to Sir Julius Caesar, 1 Marsden, Documents 320-321. 

37. Id. 522 at 523. 

38. See, for example, the Proclamations of 23 June 1603 by James I declaring 

[T]hat all such our men of warre as now-be at sea, having no sufficient commission . . ., and 
have taken . . . any ships or goods of any subject of any prince in league and amitie with us, 
shall be reputed and taken as pirates, and . . . shall suffer death . . . according to the ancient 
lawes of this realme. 

1 Marsden, Documents 342 at 343. The object of this Proclamation was to enforce the new peace with Spain. 
There is no known ancient English law or "piracy" to justify the last sentence of the Proclamation, and the 
use of the word seems consistent with James's flinging it about to everybody not obeying his orders. See 
text above at notes 1-85 and 86. 

39. See below. 

40. See text at note 109 below. 

41. See below. 

42. See, e.g., the French letter of marque of 1693 authorizing a privateer not only to capture English and 
Dutch ships, but also to "courirsus [sic] aux Pirates, Corsaires, et gens sans aveu." 2 Marsden, Documents 140. 
Presumably Captains Golding, Jones and Vaughan had commissions in this form. See text above at notes 20 
and 28 sq. On the evolution of privateering from a private act to avoid belligerency to a belligerent right of 
a sovereign, see note 1-176 and works cited there. 

43. 2 Marsden, Documents 427-428. 

44. This trace of a natural law license to take necessities from the rich comes not from natural law or 
from Jenkins, but is merely Jenkins's paraphrase of the provision of 27 Hen. VIII c.4 and 28 Hen. VIII c.15 
sec. iv. See also Molloy, De Jure Maritimo, Book I, ch. IV, para. xviii(2) at p. 41. 

45. Charge to a Grand Jury at Admiralty Session in Southwark, 18 February 1680, 167 Eng. Rep. 561. 
This charge does not appear to have been among those collected by Wynne, op. cit. note 1. 

46. As to the availability of insurance at this time for "all events and for all disasters," see Defoe, Moll 
Flanders (1722) (Signet ed. 1964) 280. Defoe pretended that the book was a first-person account by a whore 
written in 1683. It has frequently been asserted that the tale was intended in the usual form of the time as a 
satire on the emerging merchant classes in England and North America. 

47. 1 McNair, Law Officers' Opinions 266-267. 

48. See text at notes 1-143 sq. above. 

49. Once again, it is not proposed to follow this interesting side-trail; to trace the history of the concept 
of "piracy" is enough for one book without also attempting the history of "robbery." The phrase "animo 
furandi" appears as an essential element of the Common Law crime of "larceny, "of which "robbery" is an 
aggravation according to 1 Hale, Pleas of the Crown 61, 71. Curiously, the phrase does not appear in Hale's 
direct discussion of either "robbery" or "piracy." Its first known technical use in English law was 
ironically in Bracton's (c. 1250) Latin treatise in which the English Common Law crime of "theft" is 
translated with the Latin word "latrocinium" which in turn was later translated back into English as 
"larceny" — thus, it seems, contributing to the confusion between "pirata" and "latrones" by indirectly over 
a period of some 400 years finding the former to be at English law a mere sub-category of the latter. 
Bracton did not mention "pirata" while recording in the reign of Henry III with regard to "lactrocinium" 
"sine animo fur andi non committitur [without the intention of stealing it is not committed]." 2 Pollock & 
Maitland, History of English Law 494, 499. The Latin word "furandi," translated "of stealing" above, itself 
contains a complex idea of illegality and taking which it is impossible to analyze further in this place. The 
word "ammo" in Latin is in the ablative case and means "with intent." The dative is the same, "animo. 
The nominative singular is "animus" and the accusative is "animum." 

50. See text at note 1-156 above. 

51. See note 1-61 above. 

52. See notes 1-49 and 1-50 above. 

53. The analogy between Vikings and classical "pirata" was drawn no later than 1387. See text at note 
1-64 above. 

54. See text at notes 1-93 sq. above. 

55. See colloquy in text at note 7 above. 



Evolution in England 117 

56. The most common is Rex v. Dawson and others (1696), 13 How. St. Tr. 451. It is cited in East, A 
Treatise of the Pleas of the Crown (1804), as Rex v. May, Bishop and others. The defendants were Joseph 
Dawson, Edward Forseith, William May, William Bishop, James Lewis and John Sparkes. 

57. See text at notes 28 sq. above. 

58. 13 How. St. Tr. 453, 457, 529 sq. 

59. The issue was one of double jeopardy, of course. The report is less than satisfactory on this point; the 
places and names of the principal victims of the defendants' depredations, and the witnesses for the 
prosecution, seem very similar in the two trials insofar as reported. 

60. 13 How. St. Tr. 454-455. 

61. 28 Hen. VIII c. 15. The text is set out in Appendix I. A. 

62. Molloy, op. cit., Book I, ch. IV, para, vii at p. 37. 

63. Id., para, viii: "And so it is, if the Subject of any other Nation or Kingdome, being in Amity with the 
King of England, commit Piracy on the Ships or Goods of the English ..." 

64. Id., para, xiv at p. 39: 

"If a Spaniard robs a French Man on the High Sea, both their Princes being then in Amity, and 
they likewise with the King of England, and the Ship is brought into the Ports of the King of 
England, the French Man may proceed criminaliter against the Spaniard to punish him, and civiliter 
to have Restitution of his Vessel: but if the Vessel is carried intra Praesidia of that Prince, by 
whose subject the same was taken, there can be no proceeding civiliter, and doubted if 
criminaliter, but the French Man must resort into the Captor or Pirats own Contrey, or where 
he carried the Ship, and there proceed." 

65. Id., para, x, p. 38. 

66. Letter from Sir Leoline Jenkins to Admiral Sir Thomas Allen dated 8 October (1674?), 2 Wynne, op. 
cit. 699-700. 

67. This basis for "normal" jurisdiction appears to have dropped out of the customary international law 
regarding the extent of national jurisdiction, or at least become doubtful, by the 20th century. See The 
Lotus Case, Permanent Court of International Justice (P.C.I.J.), Ser. A, No. 10 (1927), and the "voluminous 
literature inspired by this case," 2 Hudson, World Court Reports 20. This is not the place to pursue this 
interesting subject further. 

68. Molloy, op. cit., para, xi, p. 38. 

69. Id., para. xii. 

70. 1 Wynne, op. cit., lxxxv-lxxxvi, Charge given to an Admiralty Session within the Cinque Ports, 2 
September 1668. 

71. The precise date is unclear; Wynne does not give it. Since the title "Sir" is used, and Wynne does not 
use the title with regard to Jenkins's writings before 1669, when Sir Leoline was knighted, and Jenkins left 
the Admiralty bench in 1674, some time between 1669 and 1674 is indicated. 

72. Id., pp. xc-xci, Charge given to an Admiralty Session held at the Old Bailey. 

73. Williamson's biography is capsulized in 21 DNB 473-478. 

74. 2 Wynne, op. cit. 713 at 714. 

75. Id. 

76. Id. 

77. Which treaty is not specified by Jenkins. It appears to be the Treaty of Breda, 21/31 July 1667, 10 
CTS 255. Jenkins refers to an Article 35, which seems to bear some relationship to Article 35 of a Treaty 
between France and the Netherlands which was made applicable also to England by Article III of the 
Treaty of Breda. 10 CTS 278, 281. 

78. 2 Wynne, op. cit. 714-715. 

79. Article XX of the Treaty of Peace and Alliance between Great Britain and the Netherlands, Breda, 
21/31 July 1667, 10 CTS 231, specifically provides for the "condign punishment" of "Pirates and Sea 
Rovers" regardless of nationality. Interestingly, the reproduction in the CTS omits the English translation 
of the Latin text of this (and several other) articles. The Englist text quoted here is from an unattributed 
volume, Extracts from the Several Treaties Subsisting Between Great Britain and Other Kingdoms and States . . . (1741) 
132, apparently a shipboard reference work for English naval commanders. Obviously, the compilers of 
this work believed the Treaty of Breda's provisions regarding the punishment of "pirates" were continuing in 
force. In the original Latin, the phrase "Pirates and Sea Rovers" is li Piratae et Praedones," 10 CTS 242. 

80. Cited at note 56 above. 

81. Text at note 72 above. 

82. 13 How. St. Tr. 455. 

83. Id. 457. 

84. Id. 483. 

85. \4How. St. Tr. 1199. 

86. 6 Anne c. 40 (1707); Scottish Act 5 Anne c. 7 (1706). 



118 The Law of Piracy 

87. 14 How. St. Tr. 1238. 

88. Id. 1311-1312. 

89. Id. 1224. 

90. The roots of this conception and its incorporation into English law through the adoption of the 
maritime Laws of Oleron are mentioned in the text at note 1-150 above. 

91 . The Trial of Captain William Kidd, at the Old-Bailey, for Murder and Piracy upon the High Seas; 
and of Nicholas Churchill, James Howe, Robert Lamley, William Jenkins, Gabriel Loff, Hugh Parrot, 
Richard Barlicorn, Abel Owens, and Darby Mullins, for Piracy, May 3 and 9, 1701 , in 14 How. St. Tr. 123. 

92. Id., cols. 123-125 note, summarizing the Journal of the House of Commons 16 March, 1700 - 16 
April, 1701 in which there appear many actions and resolutions relating to the accusations against Captain 
Kidd and the role of the Earl of Bellamont in confiscating Kidd's papers and sending only a selection of 
them to England with the ship bearing Kidd and his accused crewmembers. Kidd appears to have tried to 
bring Lord Bellamont to court in England alleging irregularities in his actions as Governor of New York 
(not "New England"). The Crown intervened to defend Bellamont and the cause never was heard. 2 Salk. 
625. The removal of the case appears to have become a precedent on a technical aspect of English 
administrative law. 2(ii) Anson, The Law and Custom of the Constitution (4th ed., by A.B. Keith 1935) 334. 
Bellamont's name is misspelled in note 1 on that page and in Anson/Keith's table of cases; the correct 
spelling appears in Salkeld's Reports. 

93. 14 How. St. Tr. 171-173. 

94. Id., cols. 169-170. This entire commission is as interesting and as tightly drafted as the previous one, 
but relating to privateering in time of war rather than to piracy, its technical language is not directly 
pertinent to this study. 

95. Id. 146. There is some inconsistency in the report, which also mentions that verdict being brought in 
during the second trial (for piracy) the next day. Id. 153. 

96. Id. 147. The exact location is obscure. There is a Cochin port in the Malabar coast of India, and a 
Cochin district in what is now Vietnam, but no Cochin (or Cutsheen) is known in the islands now part of 
Indonesia or the East Indies as normally intended about 1700. Cochin in India was apparently intended. The 
Quedagh Merchant is described later in the proceedings as "a Moorish ship," and the merchants on board as 
"Armenians. " Id. 155. The capture is dated to February 1697 in that place. Indeed, there seem to be several 
inconsistencies between the charge and the actual facts as uncovered during the trial, but apparently those 
discrepancies were not considered significant by the court and the defendants did not make much of them. 
For good or ill, the trial procedures in England at that time were considerably more favorable to the 
prosecution than in the United States today. 

97. The text is given at id. 149-150. 

98. Id. 150. Every (Bridgman) was mentioned prominently in the Dawson case also, cited note 56 
above, but was never captured. 

99. Id. 158. 

100. Id. 169. 

101. Id. 180. It is not proposed to cite all places in the transcript of the trial in which these points were 
made; the transcript makes exciting reading but, like most trial records, is repetitive and must be read in its 
entirety to understand all the points of dispute and their relative importance to the trial. This study is 
focused on the legal definition of "piracy" alone. 

102. Id., 183-184. 

103. Id., 185. 

104. Id., 185-186. 

105. Id., 186-187. 

106. Id., 234. George Bullen does not appear in the proceeding. 

107. Kidd asked to have Dr. Oldys, the Civil Law expert, appointed one of his defense counsel for the 
murder trial, and, after some procedural argument on another point (whether he had to plead before 
counsel would be permitted to address the court), that was done. Id. 127. Oldys appeared actively arguing 
for Kidd during the trial. Id. 132 (arguing that it the ships he took had French passes "there was just cause of 
seizure and it will excuse him from piracy"), 133 (concerning a procedural point regarding notice of the 
charge and that money to obtain witnesses should have been permitted Kidd), etc. 

108. 2 Marsden, Documents 48-49. 

109. Id., 82. 

110. If it were shown to have been an enemy vessel, it is hard to see that any legal proceedings would be 
brought before an English tribunal since there would have been no loss to provoke even a private 
restitution claim by an English or neutral skipper. If it were shown to have been a neutral or English vessel, 
the lack of commission would likely have seemed damning in an English tribunal, while the possessor of a 
commission might well have been able to argue mistake, in those days of false flags. 

111. Text at note 104 above. 

112. See text at note 1-156 above. 



Evolution In England 119 

113. Text at notes 1-182 sq. above. 

114. Text following note 1-187 above. 

115. See above at note 1-190. 

116. See note 1-191 above. 

117. The incident of Sir Francis Drake's submitting his unauthorized prize to Queen Elizabeth is well 
known. The conventional wisdom that Drake sailed without a commission to take Spanish and Portuguese 
prizes, but bought the Queen's retroactive consent by submitting his spoils to her personal disposal, may 
reflect court gossip more than fact at least with regard to Drake's raid on Nombre de Dios and his round the 
world expedition. There are traces of secret permissions uttered by the avaricious Elizabeth although an 
open commission would have risked an unwanted war with Spain. See Nuttall, ed., New Light on Drake 
(Hakluyt Society, 2nd Ser., Vol. 34) (1914) 54-56 (Sir Francis's cousin John's account of Sir Francis's 
reception by Queen Elizabeth in 1573; John's account was delivered under questioning by the Spanish 
Inquisition in Lima, Peru, in 1587 regarding the Nombre de Dios raid); 429-430 (letter of 22 October 1580 
from Elizabeth to her treasury official, Edmund Tremaine, to grant Drake 10,000 pounds out of his own 
spoils just brought in, but adjuring him to strictest secrecy). Cf. Wagner, Sir Francis Drake's Voyage Around 
the World (1926) 25-26 (summarizing the probabilities); 445-446 (copy of the commission from Elizabeth to 
Captain Edward Fenton dated 2 April 1582 indicating the usual form, authorizing the captain to administer 
justice on board his ships, but silent as to captures or the administration of justice to pirates or any 
foreigners). In 1593 Lord Howard, the Lord High Admiral, wrote to Sir Julius Caesar of a Spanish ship 
taken to Plymouth by one of Drake's captains, "to let you know the premises, and to require you that the 
want of a commissione maybe noe let unto the same." 1 Marsden, Documents 281-282. 

118. Cited note 32 above; text reproduced in Appendix LB. 

119. Id., sec. 7. 

120. Id., sec. 8. 

121. "Barratry" is not mentioned as such in the statute. It would have been included as "petty treason" 
or "felony" as a breach of: trust. See notes 1-134, 1-165 above. 

122. Cited note 86 above. 

123. E.g., 4 Geo. I c. 11 (1717), ending the "benefit of clergy "for "pirates" ("benefit of clergy" refers to 
special procedures to remove the clergy (at times, any literate person) from the jurisdiction of the normal 
Common Law courts); 8 Geo. I c. 24 (1721) making it a crime to "consort" with pirates; 18 Geo. II c. 30 
(1744) minor amendments to the Act of 1700; 46 Geo. Ill c. 54 (1806) allowing Commissions under the Act 
of 1536 to be held in any overseas British colonies; 7 Geo. IV c. 38 (1826) refining the Act of 1806; 7 Will. IV 
& 1 Vic. c. 88 (1837) making a technical adjustment to clarify a doubt about whether attempted murder was 
capital by making it so when accompanied by "piracy." 

124. 6 Geo. IV c. 49 (1825). See chapter IV. B. 2 below. The Act is reproduced in Appendix I.C below. 

125. 14 How. St. Tr. 1067. 

126. See Appendix LA below. The relevant passage is quoted in the text at note 1-164 above. 

127. 14 How. St. Tr. 1073. Of course, "pirates" were not called by the Romans "hostis humani generis." See 
note 1-201 above. As to oaths given to pirates, see notes 1-49, 50 and 51 above and the text that follows them. 
In fact, in relations with "pirata" in classical times the law of arms was followed. See generally text at notes 
1-22 sq. 

128. Text quoted at note 93 above. 

129. The "Mayflower Compact" of 1620 can be seen as an application of this "social contract" theory in 
practice, although the most eloquent statement of social contract theory that has survived, Hobbes, 
Leviathan (1651), was not published until some thirty years later. 

130. 14 How. St. Tr. 1084-1087. 

131. It is not known what incidents are referred to. Presumably some form of popular nonsense was 
being alleged without basis in fact or literature. 

132. 14 How. St. Tr. 1089. 

133. Id. 1090-1095. 

134. Zouche, Iuris et Iudicii Fecialis (1650) Q.L. Brierly transl.) (CECIL 1911) Part I, sec. i, p. 1. 

135. It has become conventional wisdom that Jeremy Bentham first made this distinction in English. See 
Woolsey, Introduction to the Study of International Law (1860, 3d ed. 1871) sec. 9 at p. 26-27). As Woolsey points 
out, the conceptual distinction between the jus gentium, the common law of all countries, and the jus inter 
gentes, the law between nations, was well known at Roman law and Bentham 's contribution, if any, was 
merely to introduce the phrase "international law" as a label for the second concept. In fact, Bentham does not 
focus on this distinction at all in the works in which the phrase "international law" was first used. 2 Bentham, 
The Works of Jeremy Bentham (John Bowring, ed.) (1838-1842, 1962) 535. The first of the four essays in which the 
phrase appears was written in 1786 and the last in 1789, but none of them was printed until Bowring's edition of 
the complete works a generation later. Id. 536. Nussbaum refers the phrase to a slightly later work of 
Bentham, the Introduction to the Principles of Morals and Legislation (1789) (Nussbaum, A Concise History of the Law of 
Nations (Rev'd ed. 1954) 136), and calls it "one of his [Bentham 's] happiest linguistic innovations. " Id. If so, it is 



120 The Law of Piracy 

hard to see why Nussbaum himself titled his great History as he did. Bentham himself seems to have 
oversimplified the jurisprudential relationship between, on the one side, rules of conflict of laws and the 
common municipal law of all states (today considered a branch of public international law only in certain 
narrow contexts, like the municipally enforced laws of war, prize law and some parts of Admiralty; see the 
Zatnora [1916] A.C. 77, opinion by Lord Parker of Waddington), and, on the other side, the law between states: 

Now as to any transactions which may take place between individuals who are subjects of 
different states, these are regulated by the internal laws, and decided upon by the internal 
tribunals, of the one or the other of those states: the case is the same where the sovereign of the 
one has any immediate transactions with a private member of the other: the sovereign 
reducing himself, pro renata [fig., for that purpose], to the condition of a private person, as often 
as he submits his cause to either tribunal; whether by claiming a benefit, or defending himself 
against a burthen. There remain then the mutual transactions between sovereigns, as such, for 
the subject of that branch of jurisprudence which may be properly and exclusively termed 
international* [1. The word international, it must be acknowledged, is a new one; though, it is 
hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant 
way, the branch of law which goes commonly under the name of the law of nations: an 
appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather 
to refer to internal jurisprudence . . .]. 

Bentham, Introduction to the Principles of Morals and Legislation (1789) (printed with A Fragment on Government, 
Wilfrid Harrison, ed., 1948) 426. Bentham 's rather glib dismissal of the legal obstacles that the theory of 
sovereign immunity places in the way of private suits against foreign sovereigns seems not to be based on any 
logic or historical precedent of his time. 

136. Pufendorf, Elementorumjurisprudentiae Universalis (1660) (ed. of 1672) (W. A. Old Father, transl.) (CECIL 
1931), Definition XIII sec. 24. Compare with Rachel, De Jure Naturae et Gentium Dissertationes (1676) (J. P. Bate, 
transl.) (CECIL 1916), Dissertation Second, sec. Ill: 

"For if there be any Law observed among many peoples, but no obligation springing 
therefrom obtains among them so that by its bond they are constrained into a Society and kept 
therein, that is not Law of Nations at all and ought not to be so called, but it is a Civil Law 
common to many peoples and belonging to them as individual peoples. Now Grotius saw this 
rightly and pointed it out; but here and there he falls in with the common but quite unjustified 
usage and calls that Law the Civil Law of many peoples, or a kind of Law of Nations." 

Rachel, positivist in his main lines of thought, considered it "quite wrong to confuse the Law of Nations with 
the Law of Nature." Id., sec. IV. 

137. Cf. Grotius, De lure Praedae Commentarius (1604) (Williams & Zeydel, transl.) (CECIL 1950), passages 
referred to in note 1-126 above; Wolff, Jus Gentium Methodo Scientifica Pertractatus (1747, 1764) (Joseph H. Drake, 
transl), (CECIL 1934), sees. 200-201; Vattel, Le Droit des Gens (1758) (Charles G. Fenwick, transl.) (CECIL 
1916), Book II, ch. ii, sees. 23-24. It is noteworthy that Vattel does not address "piracy" directly. Privateers 
without commission he wrote could be treated on capture as "robbers or brigands [des voleurs ou des brigands]" 
while those with commissions were properly considered "prisoners captured in regular warfare [prisonniers, 
faits dans une Guerre en forme]." Id. Book III, ch. xv, sec. 226, Vol. II p. 199; Vol. Ill, p. 318. His discussion of 
privateering (id. sec. 229) addresses only those who abused their licenses for personal gain instead of justice, as 
unable "to remove the stain of infamy [ne peut lava leur infamie]," but he does not call them "pirates" or 
brigands. He does not address the infamy of those who pursue the same ends without commissions. 

138. Wolff dealt with the problem of an expanded knowledge of political societies outside of Europe, and 
the apprehension that not all men found the interference with peaceful commerce to be unreasonable, by 
hypothesizing the entire "society of men united for the purpose of promoting the common good by their 
combined powers" as a "supreme state" governed by its own unwritten constitution. Wolff, op. cit., 
Prologomena sees. 9-11. He considered indivduals as bound equally with states to the whole system. Id., sec. 
12. But he excluded from the supreme state nations which, without naming any, he called "barbarous and 
uncultivated. " Id. sees. 52-53, 168-169. This approach raises many theoretical problems, particularly when it is 
remembered that Wolff expressly notes that all nations are imperfect, and that there is no right of war against 
a "barbarous" state merely on account of its barbarity (id. sec. 169) — thus implying that there is yet another, 
even more "supreme," state linking the "supreme state" of civilized nations to barbarous states in a single 
system. But this is not the place to analyze Wolffs full thought. 

139. Bynkershoek, op. cit. note 3 above. 

140. Id., text at note 3 above. 

141. Id., 98 (English translation); Vol. I, p. 122: " piratarum praedonumque vocabulo intelligentur." 

142. Id., Vol. II, p. 98 (English translation); Vol. I, p. 122: "Unde, utpiratae, puniuntur, quiadhostem depraedandum 
enavigant sine mandato Praefecti maris ..." 

143. Id. 



Evolution in England 121 

144. Id. 

145. Id., Vol. II, p. 99, citing Dutch (and pre-independence Habsburg) laws of 1570 (insurance), 1580 
(herring-fishers) and 1696 (French privateers too close to Dutch territory). The Dutch word used in these 
statutes was not "piracy" but " 'zeerovery." Id., Vol. I, p. 126. 

146. See text at notes 17 sq. above. William III of England was, of course, William, Prince of Orange, 
the Stadhouder of the Netherlands. The line of succession in England diverged from that of the Netherlands 
after his death, England having invited him to rule only because he was the Protestant husband of James's 
daughter Mary. Under this arrangement, William ruled England alone as William III after Mary's death in 
1694, but was succeeded by Anne, Mary's younger sister, who died without surviving children in 1714. 
George I of Hanover succeeded Anne in that year as the nearest relative of the Stuart line (he was a 
great-grandson of James I). 

147. Bynkershoek, op. cit., Vol. II, pp. 101-102. It is not clear whether this negotiation is the same as that 
retailed in the text at notes 73 sq., in which Sir Leoline Jenkins took the view in 1675 that the Treaty of 1667 
had a different meaning than that stated here by Bynkershoek. 

148. See argument in text at notes 85 sq. above. 

149. Bynkershoek, op. at., Vol. II, p. 102. The treaty is in 7 CTS 141. Article XVII (pp. 146-147) comes 
closest to what Bynkershoek says, but I have found no provision that says it clearly. 

150. Bynkershoek, op. cit., Vol. II, pp. 102-103. 

151. See note 1-176 above. 

152. Blackstone, Commentaries on the Laws of England, was published in four volumes, Only the fourth is 
pertinent to this study; it was published in 1769. The identical text is used in the edition published in 
Worcester, Massachusetts, in 1790, which is the one from which these excerpts are taken as more likely to 
have influenced American judges in the early 19th century, particularly Justice Story. See chapter III 
below. 

153. 4 Blackstone, Commentaries (1769, 1790) 67. 

154. See notes 1-61 and 1-201 above. 

155. 4 Blackstone, op. cit. 71-72. 

156. Coke, Fourth Institute (1644) passim. 

157. All the excerpts below are taken from 2 Wooddeson, A Systematical View of the Laws of England 
(1794), Lecture XXXIV, "Of Captures at Sea." 

158. Id., 421. 

159. Id., 422. 

160. Such as whether an attempt at "piracy," the mere assault, not being "robbery" was properly 
considered to be "piracy." Jenkins and Molloy each has passages relating to this, Jenkins asserting the 
attempt to be enough, according to Wooddeson, Molloy taking the other position on the basis of statute 
law in many jurisdictions. But Wooddeson's citation to Molloy (Molloy, op. cit. sec. 18) seems unrelated to 
the point, and in another place (sec. 13) Molloy argues that an unsuccessful assault will still carry criminal 
penalties — the distinctions being technical ones as to whether members of the crew are all principals or 
only accessories in the crime. This does not seem a significant issue for present purposes. An exhaustive 
analysis of the technical questions, treating the English treatises and cases as if determinative of 
international law, is In re Piracy Jure Gentium [1934] A.C. 586. See note V-101 sq. below. 

161. Wooddeson, op. cit. 423. 

162. Id., 423-424. 

163. On the shift of language from "law of nations" to "international law," see note 135 above. 

164. Id., 426. 

165. Id., note "n" at the foot of p. 426. Wooddeson records that Ryan was convicted but pardoned, 
which seems to illustrate the point of jurisprudence: Convicted under positive law relating to commissions; 
pardoned as a act of grace under natural law principles relating to moral fault. 

166. See last sentence in note 1-196. Oddly, Wooddeson cites p. 152 instead of 154 of Coke's Fourth 
Institute. There is language in p. 152 to support the citation, but not as direct as the language from p. 154 
quoted in note 1-196 above, since under the recitation of the case by Coke in p. 152 it is noted that Palachie 
in fact had a commission. 

167. Wooddeson, op. cit. 432. 

168. See classifications of Henry Marten, in the text at note 43 above. 

169. This must have been so as a practical matter, since only the prince issuing a license could have the 
legal power to interpret his own grant. That, of course, is the problem hinted at but not expressed very 
clearly by Bynkershoek in discussing the practice of referring all belligerent captures back to the courts of 
the licensing sovereign. See text at note 149 above. 

170. Wooddeson, op. cit. ATI . 



122 



III 

The United States of America and the 

Law of Piracy 

The Basic Framework 

T he United States of America was governed by basic conceptions of 
English law during the days of the formation of the Union, and the 
leading drafters of the Articles of Confederation in 1777 and the Constitution 
in 1787 were lawyers trained in English law. 

Under the Articles of Confederation, each of the thirteen newly 
independent states retained "every Power, Jurisdiction and right, which is 
not by this confederation expressly delegated to the United States." 1 State 
laws with regard to "treason, felony, or other high misdemeanor" were 
preserved and extradition obligations accepted; there was no equivalent 
extradition obligation among the states of the confederation with regard to 
ordinary crimes. 2 This language seems to rest on an archaic definition of 
"felony" and an evolving conception of the impact of the Statute of Treasons 
of 1352 as it might apply to states not ruled by a king. 3 "Piracy" was not 
included. Instead, "piracy" was treated as both a kind of public war and 
special sort of common crime. While the states were forbidden to maintain 
vessels of war in time of peace except as authorized by the representatives of 
at least nine of the thirteen states in a formal meeting of the "Congress," 4 or 
issue any "letters of marque or [sic; and?] reprisal" in the absence of a 
declaration of war by the Congress, 5 an exception was made for the case 
when any particular state should "be infested by pirates, in which case vessels 
of war may be fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United states in Congress assembled, shall determine 
otherwise." 6 The courts to deal with cases of alleged piracy, however, were 
not to be courts of the states. The power was expressly given to the Congress 
of all the states for: 

Establishing rules for deciding in all cases, what captures on land or water shall be legal, 
and in what manner prizes taken by land or naval forces in the service of the United 
States [but not state militias or warships] shall be divided or appropriated — of granting 
letters of marque and reprisal in times of peace — appointing courts for the trial of 
piracies and felonies committed on the high seas and establishing courts for receiving 
and determining finally appeals in all cases of captures. . . ? 



United States Law 123 

To the degree the provision authorizing states to commission their vessels 
of war to defend them from infestations of "pirates" might be construed as a 
derogation from the power of the Congress alone to determine on peace and 
war, the power of the states was preserved, 8 but that derogation does not 
seem to have been intended to affect the jurisdiction of maritime and prize 
courts established by the Congress or authorize the states to establish 
competing courts. 9 On the other hand, treating "piracy" as if a branch of 
maritime warfare cannot have been intended to affect the residual powers of 
the states to denominate as "piracy" whatever they chose within their 
territorial jurisdiction, and establish courts to try alleged offenders under 
state law. The congressional courts were authorized only to try "piracies and 
felonies committed on the high seas," apparently intended to refer to areas 
beyond the territorial jurisdiction of any particular state. There is no closer 
definition of "piracy" in the Articles of Confederation and no known 
significant practice. 

The confusion between "piracy" as a sort of unlicensed belligerency and 
"piracy" as a municipal law crime equivalent to robbery seems to have been 
maintained, with both definitions existing side by side, and naval suppression 
existing side by side with municipal tribunals. The distinctions were 
presumably worked out in practice depending on where any particular 
accused "pirate" was taken and by whom, and under what license the taker 
operated. 

James Madison's Reports on the Debates in the Federal Convention of 1787 10 
records the discussion preceding the adoption of the Constitution. According 
to that source, a "Committee of Detail "chaired by "Mr. Rutlidge"(s*'c) n on 
6 August 1787 presented a working draft with the following provision: 

[Art.] VII Sect. I. The Legislature of the United States shall have the power ... To 
declare the law and punishment of piracies and felonies committed on the high seas, and 
the punishment of counterfeiting the coin of the United States, and of offenses against 
the law of nations. . . . 12 

This clause is quite separate from the proposed clause authorizing the 
legislature to "make war, "but appears immediately after a clause authorizing 
the legislature "To make rules concerning captures on land and water." The 
authority of the Supreme Court in the Rutledge Committee's draft was to 
extend "to all cases arising under laws passed by the Legislature of the United 
States" and also "to all cases of Admiralty and maritime jurisdiction," among 
other things; the legislature was to be empowered to assign any part of this 
jurisdiction to such inferior courts as it might establish. 13 

The "piracy" clause was brought before the Convention on 17 August. 
Madison moved to strike the words "and punishment" after "declare the 
law." Two delegates expressed concern only over the effect of the deletion 
on counterfeiting (apparently construing the suggestion to strike the phrase in 
both places where it appears in the clause). One of them pointed out that 



124 The Law of Piracy 

without the phrase there might be no legal authority to punish counterfeiters 
of foreign currency. Since the only reference in the provision to counter- 
feiting is restricted to "the coin of the United States, " it seems that delegates 
to the Convention and Madison in his notes were considering counterfeiting 
foreign currency as an offense "against the law of nations." It is clear that 
territorial limits on jurisdiction were a concern; that a foreign power would 
have no jurisdiction to apply its law in the new federation, and if the federal 
government did not have the express power to punish the counterfeiters of 
foreign paper or coin some states of the union might become havens for 
counterfeiters. The argument that seems to have carried the day merely 
pointed out that in writing a constitution it was not necessary to be as 
meticulous as in drafting a statute. Madison's motion was carried 7-3 with 
three states abstaining. 

Governeur Morris of Pennsylvania then moved to strike out "declare the 
law" and insert "punish" before the word "piracies." That motion also 
carried 7-3. Madison and Edmund Randolph 14 then moved to reinsert the 
word "define" before "punish" arguing that the definition of "felony at 
common law is vague" and in places "defective." There is no hint that 
anybody conceived of "piracy" as a crime at international law, but only as a 
felony at English Common Law. There was no doubt entertained by anybody 
that the Congress of the United States could exercise a legal power to define 
not only "piracy," but apparently to define "offences against the law of 
nations." The Madison and Randolph amendment passed unanimously. 15 

It is difficult to understand either the reference to "common law" or the 
assumption that the United States, a single entity in the world, had the legal 
power to define and punish offenses against the "law of nations" if those two 
phrases are taken in any other context than that of Blackstone. If the "law of 
nations" meant merely the national law of all states, there could be no 
problem; but if it were intended to mean the law determined by treaty, 
diplomatic correspondence and the practice of states in the international 
order there are obvious technical legal difficulties in the language as adopted 
on 17 August. The problem with the phrase "common law" is easier once it is 
recalled that since 1536 in England "Common Law" procedures were used in 
the trials of piracies and "felonies" within the jurisdiction of the Admiral. 
The English constitutional struggle focusing on the traditions and political 
subordination of the various courts in England at the time of Lord Coke and 
the Stuart Kings, thus the technical distinctions between "Common Law" 
and "Civil Law" as the law applied in Admiralty courts, had lost meaning. By 
time of Blackstone, the phrase "Common Law" had acquired a normal 
meaning referring to nonstatutory law applied throughout England, but not 
necessarily the law applied only by specific courts. 

The more important question, that of bringing the power of the Congress 
to make law into harmony with the international legal order was raised again 



United States Law 125 

on 14 September 1787 by Governeur Morris moving to strike out "punish" 
before the words "offences against the law of nations" so as to have the words 
he had proposed successfully a month before simply carry their meaning on 
through the entire clause. But James Wilson, also of Pennsylvania, 16 objected on 
the ground that "To pretend to define [emphasis sic] the law of nations which 
depended on the authority of all the civilized nations of the world, would have a 
look of arrogance, that would make us ridiculous." 17 Morris replied that the 
word "define" "is proper when applied to offences [emphasis sk]', the law of 
nations being often too vague and deficient to be a rule. " The motion by Morris 
passed very narrowly, 6-5, with Pennsylvania opposed: The word "punish" was 
retained as applied to "Piracies and Felonies committed on the high Seas," but 
was deleted from the text as applied to "Offences against the Law of Nations. " 18 
The clause as adopted, and now contained in the Constitution is as follows: 

The Congress shall have the Power . . . To define and punish Piracies and Felonies 
committed on the high Seas, and Offences against the Law of Nations. 19 

The authority of the Congress to provide for the punishment of counter- 
feiting appears elsewhere, and applies only to counterfeiting the securities and 
current coin of the United States; there appears to be no authority in the 
Congress to make laws against counterfeiting foreign currency unless that is 
considered an offense against the law of nations or part of the power of the 
Congress elsewhere in the Constitution. 20 

The power of the Congress to declare war, grant letters of marque and 
reprisal, and make rules concerning captures on land and water appears in the 
clause of the Constitution immediately following the clause relating to piracy 
and offenses against the law of nations. There was no reference to piracy in the 
discussion of that provision as recorded by Madison. 

All cases of "admiralty and maritime jurisdiction" are reserved to the federal 
courts, 21 and treason is defined as "only in levying War against [the United 
States], or in adhering to their Enemies, giving them Aid and Comfort." 22 
Further refinement of all these sweeping words was left to the Congress and the 
courts. 

Piracy as such was not discussed when the Convention passed unanimously 
the provision that "all Treaties made under the authority of the United States 
shall be the supreme law of the several states and of their citizens and 
inhabitants; and the Judges in the several States shall be bound thereby in their 
decisions." 23 The minor alterations that resulted in this language being 
condensed to the form in which it appears in the Constitution were apparently 
the work of the "Committee of Stile [sic, style] and Arrangement," which had 
reported its proposed text on 12 September 1787. 24 There is no known record of 
the deliberations of that Committee. The final language says: ". . . all treaties 
made, or which shall be made, under the authority of the United States, shall be 
the supreme law of the land; and the judges in every state shall be bound 
thereby. . . . ,,2S 



126 The Law of Piracy 

From this brief summary, it is possible to conclude that the framers of the 
American Constitution, insofar as they focused on the question at all, 
conceived "piracy" to be something different from "offenses against the law 
of nations," but rather falling into a like category with "felonies committed 
on the high seas." Precisely what was left of the category "offenses against 
the law of nations" seems very unclear; indeed, it appears to have been 
considered unclear by most of the delegates at the Constitutional Convention. 
To those who accepted the Blackstone conception of "piracy" being an 
offense against the law of nations, but the "law of nations" being merely a 
collective term for national laws that were similar in all civilized nations, like 
the law merchant, there would have been no problem of analysis or 
interpretation. To those like James Wilson whose conception of the "law of 
nations" involved obligations owed by states in the international legal order 
to their sister states, the power of the Congress to define any of its terms must 
have seemed inconsistent with the power of the Executive to negotiate with 
foreign governments and to send and receive diplomatic missions, since 
diplomatic correspondence was necessarily conceived as part of the law- 
making process of that "law of nations. " Wilson's analysis was rejected 6-5 in 
the one instance in which the problem was discussed as far as surviving 
records indicate. The law-making process of the law between states (to revert 
to Zouche's term) was apparently conceived by the framers of the 
Constitution to be confined to treaty, and there was no discussion of the 
development of the law relating to "piracy" (or any "offenses against the law 
of nations") in the discussion of the treaty-making power or the binding force 
within the Union of treaties made under the Constitution. 

This analysis is more or less borne out by Federalist No. 42 (written by 
James Madison) which addresses the powers of the federal government 
relating to intercourse with foreign nations. The question addressed in the 
Federalist is, Why should these particular powers be given to a central 
authority and not reserved to the states? The answer with regard to the 
powers to make treaties and to send and receive ambassadors, said Madison, 
was self-evident; they "speak their own propriety," and merely repeat 
powers already conceded to a central authority in the Articles of 
Confederation. 26 As to the power to define and punish piracies and felonies 
committed on the high seas, Madison argued that "the provision of the federal 
articles [i.e., the Articles of Confederation] on the subject of piracies and 
felonies, extends no farther than to the establishment of courts for the trial of 
these offences. " 27 And, he went on, "The definition of piracies might perhaps 
without inconveniency, be left to the law of nations; though a legislative 
definition of them, is found in most municipal codes." 28 By distinguishing 
between the "law of nations" and "most municipal codes" Madison seems to 
have denied the relationship between the two sources of substantive law 
considered inherently linked by Blackstone and a narrow majority of the 



United States Law 127 

Convention. But Madison went no further, and it appears that he did not 
regard the issue as sufficiently pressing in 1788 to be an obstacle to the states 
adopting the new Constitution. He seems to have regarded "piracy" as a 
"crime" in fact defined by the "law between states." But he has left us no 
other clue as to how he believed that law was evidenced and what its 
jurisdictional terms and substantive provisions might have been. 

This glib reference to "piracy," reminiscent of the remark by Justice 
Potter Stewart of the United States Supreme Court nearly two hundred years 
later regarding pornography, that he could not define it, but he knew it when 
he saw it, can be contrasted with the somewhat more elaborate treatment 
Madison gave "felonies on the high seas," a definition of which he felt was 
"evidently requisite:" 

Felony is a term ofloose signification even in the common law of England; and of various 
import in the statute law of that kingdom. But neither the common, nor the statute law 
of that or of any other nation, ought to be a standard for the proceedings of this, unless 
previously made its own by legislative adoption. The meaning of the term as defined in 
the codes of the several States, would be as impracticable as the former would be a 
dishonorable and illegitimate guide. It is not precisely the same in any two of the States; 
and varies in each with every revision of its criminal laws. For the sake of certainty and 
uniformity therefore, the power of defining felonies in this case, was in every respect 
necessary and proper [for the central government]. 29 

As to "offenses against the law of nations," Madison seems to have 
conceived them as not applicable to individuals at all, but possible sources of 
public conflict if a single state could determine for itself the propriety of its 
public acts that impinge on the sovereignty of a foreign power: 

These articles [of Confederation] contain no provision for the case of offences against 
the law of nations; and consequently leave it in the power of any indiscreet member to 
embroil the confederacy with foreign nations. 30 

There is no other word in the Federalist addressed to that provision of the 
Constitution, or any explanation of why it should be within the power of the 
Congress, rather than the Executive and perhaps the Senate through 
diplomatic negotiation and treaty, to define "offenses against the law of 
nations" as so conceived. 

The difficulties of defining "piracy" became apparent when the first 
Congress attempted to implement these provisions by statute. The problems 
of jurisdiction and criminal law enforcement's needs for some degree of 
specificity in setting out the precise limits that a person could transgress only 
at risk of punishment by public authorities of a government with limited 
powers, could no longer be assumed away or covered over with Blackstonian 
or Madisonian generalities. 31 

"Piracy" as a Municipal Law Crime in the United States 

The Court System. The Judiciary Act of 24 September 1789, 32 section 9, gave to 
each of the thirteen original federal "District Courts" exclusively of the 



128 The Law of Piracy 

courts of the several states, cognizance of all "crimes and offences that shall 
be cognizable under the authority of the United States, committed within 
their respective districts, or upon the high seas" where the punishments did 
not exceed 30 stripes with a whip, a fine of $100, or imprisonment of six 
months. In addition to this rather minor criminal jurisdiction, the District 
Courts had civil jurisdiction in "all civil causes of admiralty and maritime 
jurisdiction" (but not superseding state Common Law jurisdiction in any 
cases of overlap), and concurrent jurisdiction with state courts and federal 
Circuit Courts "of all causes where an alien sues for a tort only in violation of 
the law of nations or a treaty of the United States." 33 The Districts were 
grouped into three "Circuits, " and the Circuit Courts were presided over by 
a District Court Judge and two Supreme Court Justices. These Circuit Courts 
were given original jurisdiction over "all crimes and offences cognizable 
under the authority of the United States" with some irrelevant exceptions, 
and concurrent jurisdiction with the District Courts over crimes within their 
original jurisdiction. They also served as appeals courts from District Court 



cases 



34 



The Substantive Law of 1790 

The Definition. The substantive law relating to "piracy" was the Act of 
30 April 1790, the pertinent part of which says: 

8. . . . That, if any person or persons shall commit upon the high seas, or in any river, 
haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or 
any other offence which if committed within the body of a county, would by the laws of 
the United States be punishable with death; or if any captain or mariner of any ship or 
other vessel, shall piratically and feloniously run away with such ship or vessel, or any 
goods or merchandise to the value of fifty dollars, or yield up such ship or vessel 
voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, 
thereby to hinder and prevent his fighting in defence of his ship or goods committed to 
his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken 
and adjudged to be a pirate and felon and being thereof convicted, shall suffer 
death . . . 35 

Sections 10 and 11 of that Act extend the same punishment to "any person" 
knowingly assisting or advising any other person "to do or commit any 
murder or robbery, or other piracy aforesaid, upon the seas" and provide for 
imprisonment and fine for those who help the "pirate or robber" after the 
fact. Under section 12, a separate offense subjecting the offender to 
imprisonment and fine is created for "any person" who commits 
manslaughter upon the high seas, or attempts to corrupt any member of a 
ship's company to yield to pirates or to turn pirate or to trade with any pirate 
knowing him to be such, and any "seaman" who confines the master of any 
ship or endeavours to "make a revolt in such ship." 

There appear to be no statutes requiring those hunting pirates to get letters 
of marque and reprisal or any other license from the federal authorities. 36 



United States Law 129 

The notion that "piracy" was a gap-filling legal conception relevant only 
when no territorial jurisdiction applied, and that the normal rules of 
jurisdiction would apply to limit a state's jurisdiction to traditional bounds, 
i.e., not to apply to the acts of foreigners without minimal contacts with the 
United States on which criminal jurisdiction could be based, appeared very 
early despite the "any person" language of the statutes. A Captain Hickman 
(nationality not specified) in 1792 appears to have landed in the French colony 
of Martinique and absconded with some slaves, which he landed in Georgia 
and tried to sell. The Attorney General, Edmund Randolph, advised 
Secretary of State Thomas Jefferson on 1 November 1792 that "the offence 
would seem to be piracy; but it may prove, when the precise place of its 
commission shall be fixed, to be of a merely municipal kind," implying that 
the French jurisdiction would exclude American even though the "pirate" 
was caught within the territorial jurisdiction of an American court. The 
opinion also sheds some light on the original intention of the provision of the 
Judiciary Act of 1789 extending the jurisdiction of District Courts to the tort 
claims of aliens alleging the tort to be a violation of the law of nations. 
Randolph instructed the United States Attorney (the federal District Court's 
prosecuting official) in Georgia "To prosecute the culprits criminaliter, as far as 
the law will permit," and Randolph went on: 

If the criminal process should be insufficient to procure [the restitution of the slaves to 
their owner in Martinique], to institute the necessary civil process for the like purpose, 
with the approbation of the owners or their agent. The last remark is made in order to 
impose the expense of a suit upon the individuals interested, rather than to assume any 
responsibility on the United States. 37 

Apparently, the alien tort claims provision was envisaged by Randolph as a 
supplement to criminal process to permit the victim of a wrongful taking 
abroad to recover his property when the tort law of the place of taking and 
the tort law of the United States coincided and the taker or the property was 
in the territorial jurisdiction of American courts. It would have had obvious 
applicability to aliens seeking to recover their goods from "pirates" as well as 
from those taking their property abroad, but seems to have rested on 
Blackstone's naturalist conception of the "law of nations." 

Further indications exist of the jurisdictional limits felt to be implicit in the 
international system and not overcome by general words applying to "any 
person" in statutes relating to "piracy." In 1795 some Americans who had 
helped plunder the British colony of Sierra Leone were apprehended in the 
United States. Attorney General William Bradford advised Edmund 
Randolph, now Secretary of State: 

So far, therefore, as the transactions complained of originated or took place in a foreign 
country, they are not within the cognizance of our courts; nor can the actors be legally 
prosecuted or punished for them by the United States. But crimes committed on the high 
seas are [emphasis sic] within the jurisdiction of the district and circuit courts of the 
United States; and, so far as the offence was committed thereon, I am inclined to think 



130 The Law of Piracy 

that it may be legally prosecuted in either of those courts in any district wherein the 
offenders may be found. But some doubt rests on this point. . . . 38 

Again, the relationship between criminal and civil jurisdiction was noted, 
and Bradford went on: 

But there can be no doubt that the company or individuals who have been injured by 
these acts . . . have a remedy by a civil suit in the courts of the United States; jurisdiction 
having been expressly given to these courts in all cases where an alien sues for a tort 
only, in violation of the laws of nations . . .; and as such a suit may be maintained by 
evidence taken at a distance, on a commission issued for that purpose, the difficulty of 
obtaining redress would not be so great as in a criminal prosecution, where viva voce 
testimony alone can be received as legal proof. 39 

The first hint that "piracy" might be a crime of universal jurisdiction as far 
as the United States was concerned came in 1798 when the Attorney General, 
Charles Lee, advised the Secretary of State, Timothy Pickering, that an 
extradition request from Great Britain for three "murderers" under the 
terms of the Jay Treaty of 1794, 40 could be denied: 

The criminal tribunals of the United States are fully competent to try and punish persons 
who commit murder on the high seas, or piracy, as may appear from the 8th . . . [section] 
of the act of 30th April, 1790. One of the persons (Brigstock) is a citizen of the United 
States; and it is not to be reasonably expected that his country will not exercise the right 
of trying him. . . . [The other two may also be Americans.] But, supposing them to be 
foreigners, the stipulation in the 27th article [of the Treaty of 1794] is not applicable to 
their case; and as they are triable in the courts of the United States ... I deem it more 
becoming the justice, honor, and dignity of the United States, that the trial should be in 
our courts. 41 

The hint is not too broad. Not only was there an undoubted link of 
nationality on which to base jurisdiction over Brigstock, and what seems to be 
a hope that the same link would be found with regard to the other two, but the 
crime involved in the British request was not "piracy" at all; it was "murder" 
within the terms of the treaty. The rationale does not flow from an analysis of 
the crime of "murder on the high seas" being included in the concept of 
"piracy" and therefore subject to universal jurisdiction, but, although it is not 
clear what the basis was for American jurisdiction if not nationality, from a 
direct jurisdiction asserted over "murderers" whose acts were committed on 
the high seas. The assertion of a universal jurisdiction over "murder" on the 
high seas, if such it was intended to be, was based on the competence of 
American courts as set forth in the statute of 1790, not on any analysis of 
public international law or any measuring of the statute's provisions against 
the legal powers under public international law of the United States to assert 
jurisdiction over the criminal acts of foreigners on the high seas. Apparently 
the desire to uphold that jurisdiction as a matter of American policy, and to 
state it in terms that would apply equally to "piracy" and, indeed, any other 
"crime" defined by an American statute, would serve equally well as a direct 
assertion of universal jurisdiction. The logic of the opinion would support the 



United States Law 131 

effectiveness in American law of any statute applying to any person on the 
high seas, and seems to challenge the British government to find a reason in 
international law why the American assertion was wrong. No British 
response to this position has been found. 

Indeed, on closer examination, the position taken by Attorney General Lee 
seems to have been both unnecessarily broad and unnecessarily narrow. If the 
accused committed their "murder" from or in an American vessel, and 
British assertions of jurisdiction were based on some effects on British 
subjects or in a British vessel, there would seem to have been an overlapping 
jurisdiction. If the "murder" had been done solely in a British vessel with no 
American contacts other than the nationality of one of the accused murderers, 
the assertion seems extreme that American jurisdiction existed over accused 
(possibly British) foreigners for their acts in a British vessel (presumably, 
from the fact of the extradition request) on the basis that "the high seas" was 
within concurrent territorial jurisdiction of all states including the new 
United States of America. Such an assertion, denying the exclusiveness of flag 
state jurisdiction over its own nationals in its own vessels on the high seas, 
seems a formula for universal policing of everything at sea, and was surely 
more than the United States would have conceded to Great Britain with 
regard to American nationals in American vessels. Although the full facts are 
not before us, it seems likely that Lee was making a broader argument for new 
national pride and policy reasons than a closer examination of the case and 
more mature judgment would warrant. 

Narrower arguments were available. The same treaty of 1794 in fact 
devotes several articles to the treatment of privateers and pirates. If it had 
really been Lee's position that the accused were "pirates," and not 
"murderers" subject to extradition under the peculiarly narrow terms of the 
treaty, the terms related to "pirates" would have applied and extradition 
denied on the narrow ground that the treaty envisaged a distinction between 
the two crimes and that the "murder" provision simply did not apply. Why 
Lee chose to make a wide assertion of American jurisdiction over 
"murderers" on the high seas as distinct from "pirates" is not known, but 
extreme "positivism" by policy-oriented officials not charged with judicial 
responsibilities can be seen from time to time in many newly independent 
states (and occasionally in some very old states), and there is no reason to 
think that the officials of the United States of America in its early days were 
immune from the same urge to flex the muscles of statehood until its full 
implications were reached. 

A similar position was asserted by Attorney General Lee a few months 
later, when the United States Attorney in Yorktown, Virginia, asked for 
guidance with regard to the ship Nigre, taken as a prize by the U.S.S. 
Constitution during the undeclared war with France and found to be of 
doubtful flag. On 20 September 1798 Lee replied (sending a copy to the 



132 The Law of Piracy 

Secretary of State), that if the ship is a "pirate," all its crew, of any nations, 
can be tried in the United States Circuit Court for Virginia. Property rights in 
the ship and her cargo, on the other hand, were directed to be submitted to the 
District Court in Virginia "according to the laws of congress, and the usage 
and practice of admiralty in prize cases." 42 

That Lee's policy-maker-positivist approach was not universally shared in 
the United States in the 1790s is evident from the terms of the Treaty of 1794 
itself. The principal American negotiator of that Treaty with Great Britain 
was John Jay, the first Chief Justice of the United States Supreme Court 
(1789-1795). It is therefore not surprising that many of its terms were devoted 
to technical legal problems of assuring that property claims deriving from 
possible illegal captures at sea by both sides, as well as many other problems of 
debt collection and land tenure, were addressed. Three articles are pertinent 
to this study. 

Article 19 deals with men of war and privateers who commit outrages 
against the persons of the other side under color of their commissions. In such 
a case, the treaty provides that "they shall be punished, and shall also be bound 
in their persons and estates to make satisfaction and reparation for all 
damages, and the interest thereof, of whatever nature the said damages may 
be. " Nowhere in the article are they referred to as "pirates" or as "deemed to 
be" or "treated in the same way as" "pirates." It appears that all action in 
excess of a commission was to be compensated by "sufficient security by at 
least two responsible sureties, who have no interest in the said privateer" 
placed before a "competent judge. " It is possible that under an approach such 
as this, Captain Kidd would have gone free, although that is doubtful in view 
of the emphasis in his trial given to his failure to submit his captures to a prize 
court. 43 

Article 20 deals directly with "pirates" as such: 

It is further agreed that both the said contracting parties shall not only refuse to receive 
any pirates into any of their ports, havens, or towns, or permit any of their inhabitants to 
receive, protect, harbor, conceal or assist them in any manner, but will bring to condign 
punishment all such inhabitants as shall be guilty of such acts or offences. 

And all their ships, with the goods . . . taken by them and brought into the port of 
either . . , shall be seized . . . and shall be restored to the owners . . . even in case such 
effects should have passed into other hands by sale, if it be proved that the buyers knew 
or had good reason to believe or suspect that they had been piratically taken. 

It appears to be assumed in this article that the definition of "pirate" was 
known to both parties, and from the emphasis on returning property to its 
owners it appears that the definition was related to wrongful takings of 
property — robbery within the jurisdiction of Admiralty courts, presumably. 
There is no hint of a broader definition in the text. 



United States Law 133 

This reading of article 20 of the 1794 Jay Treaty is verified by article 21: 

And if any subject or citizen of the said parties respectively shall accept any foreign 
commission or letters of marque for arming any vessel to act as a privateer against the 
other party, and be taken by the other party, it is hereby declared to be lawful for the 
said party to treat and punish the said subject or citizen having such commission or 
letters of marque as a pirate. 

It would appear that the national legislation of each party making it 
"piracy" for their respective nationals to accept privateering commissions 
from third parties to act against their own country 44 was not regarded as 
codifying a more general rule of international law forbidding adventurers 
taking foreign commissions, but only as an aspect of the national law related 
to treason. 45 The fact that such activity was regarded as not covered in the 
preceding article referring generally to "piracy" without any definition, but 
was the subject of an article of its own, and that a very limited one merely 
expanding the national rule to cover acts undertaken against only the other 
party under color of a foreign commission, seems to indicate that the drafters 
of the treaty did not regard taking a foreign commission as part of the basic 
conception of "piracy" in 1794. Article 21 itself did not even clearly say that 
the forbidden activity by subjects or citizens of each was "piracy," but only 
that if either party were injured by such activity it could lawfully as far as the 
treaty partners were concerned treat and punish a perpetrator of the other 
nationality as it would treat one of its own people acting under such a 
commission against the capturing state, "as a pirate." Thus it appears that to 
the drafters of the Jay Treaty of 1794, "piracy" was indeed a crime punishable 
by the municipal law of either party, but the jurisdictional rules and the 
applicability of the law to foreigners, including those of the other treaty 
partner's nationality, were not clear, and the substance of the "crime" itself 
was related to the English legal conception of "piracy " being a municipal law 
crime equivalent within the traditional English Admiralty jurisdiction to 
robbery on land. It did not clearly include "murder." 

These provisions of the Jay Treaty were in fact personally drafted by John 
Jay. 46 The distinctions between privateers exceeding their commissions, 
nationals accepting foreign commissions, and "pirates" reflected instructions 
drawn up by Edmund Randolph as Secretary of State pursuing an outline 
prepared by Alexander Hamilton. 47 

Pinckney's Treaty, the Treaty of 27 October 1795 between the United 
States and Spain, follows a similar pattern with variations. There is no 
provision regarding persons on either side exceeding their privateering 
commissions. Nor is there any provision requiring each side to bring 
"pirates" and those who consort with them to condign punishment. The 
reasons for these omissions are not clear from available secondary material. In 
place of Jay's statute-like language regarding the return to owners of ships 
and goods "if it be proved that the buyers knew or had good reason to believe 



134 The Law of Piracy 

or suspect that they had been piratically taken" is a much more general 
obligation seeming to envisage either national enforcement through 
implementing legislation along the lines of Jay's language, or simple political 
handling without the involvement of courts and judges: 

Each Party shall endeavor by all means in their power to protect and defend all Vessels 
and other effects belonging to the Citizens or Subjects of the other, which shall be 
within the extent of their jurisdiction by sea or by land, and shall use all their efforts to 
recover and cause to be restored to the right owners their Vessels and effects which may 
have been taken from them within the extent of their saidjurisdiction whether they are 
at war or not with the Power whose Subjects have taken possession of the said effects. 48 

Some indication that the principles of this article were intended specifically 
to apply to "pirated" goods and vessels, and not just those of foreign privateers, 
is in a later article specifically applying the general principles to "pirates," but 
with no greater legal detail of a sort that would be helpful to a judge: 

All Ships and merchandize of what nature soever which shall be rescued out of the hands 
of any Pirates or Robbers on the high seas 49 shall be brought into some Port of either 
State and shall be delivered to the custody of the Officers of that Port in order to be 
taken care of and restored entire to the true proprietor as soon as due and sufficient proof 
shall be made concerning the property thereof. 50 

Another article treats "pirates" as if a natural hazard comparable to 
weather: 

In case the Subjects and inhabitants of either Party with their shipping whether public 
and of war or private and of merchants be forced through stress of weather, pursuit of 
Pirates, or Enemies [sic], or any other urgent necessity for seeking of shelter and harbor 
to retreat . . . they shall be received and treated with all humanity. . . . 51 

The only other mention of "pirates" in the Treaty seems to be in article 14, 
closely paralleling article 21 of Jay's Treaty. It concludes that a citizen or 
subject of either side taking commissions or letters of marque to act against 
the subjects or property of the other side "shall be punished as a Pirate." 52 
This seems considerably more direct than the equivalent term of Jay 's Treaty 
which merely made it lawful as a matter of bilateral treaty for each party to 
treat an illegal licensee of the other nationality as a "pirate," but did not 
require such treatment, and seems much more doubtful that such treatment 
was proper as a matter of international law. Since there are no known 
prosecutions for "piracy" under these provisions, and no known diplomatic 
correspondence concerning the interpretation of these terms of the two 
treaties, it seems unnecessary to analyze the differing conceptions of the 
negotiators of the two documents any further. 

American courts in the first decades of the 19th century tried to translate 
the statutory language into rules that could be administered to achieve the 
political results they supposed were intended. In doing so, they did not have 
the freedom of policy-making positivists like Attorney General Lee to 
interpret their conceptions of law into clear rules on the basis of their 
perceptions of the political interest of the United States or pride in their 



United States Law 135 

hard-won independence. The most articulate judges took a basically 
"naturalist" view when trying to expand by interpretation the conceptions 
embodied in the language of the statute, but were held back by the deep 
Common Law traditions of judicial restraint and various natural law 
perceptions antithetical to expansive interpretations, like the notion that an 
accused criminal must have clear notice of the substance of the rule he is 
supposed to have transgressed. The judges were deeply split in their 
perceptions of the natural law and the balance to be struck by the competing 
legal, as well as policy, interests. 

The leading judge seeking to expand the definition of "piracy" and the 
jurisdiction of American courts to deal with it, was Joseph Story of 
Massachusetts, who sat on the Supreme Court 1811-1845. In two cases in 1812 
he set out his reasoning. 

The first case involved a taking by the defendants, Tully and Dalton, of an 
American vessel, the George Washington, while Uriah P. Levy, its Captain, 53 
was not on board. Since he was not put in "fear," as the Common Law of 
"robbery" would have required (the taking was thus more akin to the 
Common Law crime of embezzlement — the unlawful taking by a person with 
right to possession), to the degree "piracy" was supposed to be only 
"robbery" within Admiralty jurisdiction, the taking was not "piracy. "Judge 
Story charged the jury in the Federal District Court that "at the common law, 
the offence of piracy consisted in committing those acts of robbery and 
depredation upon the high seas, which, if committed on land, would have 
amounted to a felony there. " 54 This, of course, treats the entire operative part 
of the statutes of 1536 and 1700 as if containing a single definition of "piracy," 
making even the least "felony" within the jurisdiction of the Admiral into a 
capital offense. There is no known precedent for that position in English 
cases, and no evidence that the Congress intended that result when passing the 
statute of 1790. Nonetheless, Judge Davis concurred with Story and the two 
defendants were convicted of "piracy." 

The logic used by Story and Davis deserves some closer examination. 
Story's assertion, that piracy was an offense at Common Law and as such was 
identical to depredation upon the high seas which if committed on land would 
have amounted to felony there, was taken verbatim from Blackstone. 55 But 
where a careful analysis of the precedents shows Blackstone to have written 
more than the actual cases would bear, apparently accepting as persuasive, at 
least, some of the more extreme dicta of Sir Leoline Jenkins as to the 
definition of "piracy" under English municipal (but not technically 
"Common") law, Story used Blackstone 's summary as a base for further 
expansion of the concept. "It was not necessary by the common law," Story 
wrote, "that the offense should be committed with all the facts necessary to 
constitute the technical crime of robbery." 56 Abandoning this line of logic 
before facing the obvious problems of showing which facts should be 



136 The Law of Piracy 

disregarded in holding something technically not "robbery" within the 
Admiral's jurisdiction to be nonetheless "piracy" as a matter of Common 
Law, Story adverted to the statute of 1790. In his view the "crime" of 
"piracy" in the United States from 1790 on included the acts of "any . . . 
mariner of any ship [who] . . . shall piratically and feloniously run away with 
such ship" 57 regardless of whether such running away had been "piracy" at 
English Common Law. All that was needed under the statute, said Story, was 
"piratical and felonious intent." 58 The logic by which statutory language 
under which the adverbs "piratically and feloniously " which modify the act, 
"run away," become indicators of "intent" is not entirely clear, but it does 
not seem outrageous. Story did not explain the linkage, which presumably 
rested on distinguishing between running away with the vessel to avoid a loss 
to the owners, which would not be a crime, and running away with an intent 
to convert the vessel or cargo to the mariner's own use, which Story felt 
should be a crime, even if not "piracy." He concluded merely: "After much 
reflection ... I remain of the same opinion that I expressed at the trial," 
affirming as part of an appeal panel in the Circuit Court the charge to the jury 
he had given as a trial judge in the District Court. 

But there is a missing step; the intent to convert the ship or cargo coupled 
with the running away might well properly be denominated a crime, but was 
it "piracy," warranting a death penalty? Judge Davis focused on that 
question, concurring with Story's conclusion on the basis of a citation to 
Molloy which, in the original, says merely: 

If a Ship shall ride at Anchor, and the Mariners shall be part in their Ship-Boat, and the 
rest on shore, and none shall be in the Ship, yet if a Pirat shall attacque her and rob her, 
the same is Piracy. 59 

While it might well be argued that this passage in Molloy is part of a series 
of sections fixing technical limits to the crime of "piracy " and not intended to 
be used as a basis for expanding the definition by analogy to cases in which the 
technical definition of "robbery" could not be applied to the acts treated in 
particular statutes and isolated cases as if "piracy, " there is room for opinions 
to differ. Tully was hanged and Dalton eventually pardoned because the 
judges were convinced he was contrite. 

Another case (in 1818, U.S. v. Howard and Beebee), 60 illustrates the 
definitional problems inherent on the Act of 1790. Defendants were pilots in 
Delaware who had guided a suspicious vessel to anchorage and were now 
accused of helping the absconded master and crew of that vessel in violation 
of section 12 of the Act of 1790 forbidding assistance to "pirates." The 
question was whether, to fit section 12, the "pirates" being helped had to have 
been shown to have violated section 8, 61 thus whether a full-scale hearing had 
to be held on the misdeeds and the legal classification for those deeds of people 
not before the court. Bushrod Washington, like Story a participant in the 
Supreme Court majority decision in U.S. v. Palmer shortly before, 62 had to 



United States Law 137 

retreat like Story from his expansive naturalist position. Like Story he did so in 
practice while trying to preserve his position in theory. In the Palmer case, the 
acts of foreigners against foreigners only was held not to be "piracy" within the 
intent of section 8 of the Act of 1790, according to Washington, apparently 
mixing the jurisdictional problem with the question of the substantive definition 
of the term. Continuing along the same line, Washington charged the Jury that 
if the defendant is properly within the scope of American jurisdiction, and in 
this case he clearly was since "the pilot boat is an American vessel, and the 
persons on board were citizens of the United States, " then "The pirate [sic] with 
whom the confederacy and correspondence takes place, may, in our opinion, be 
any sea robber or pirate, according to the general law of nations." Section 12 
was thus severed from the restricted meaning of section 8 as it emerged from the 
Palmer case. But were the absconded persons "pirates" according to the general 
law of nations? To that question, Washington admitted doubts that only a jury 
could resolve. They might have been privateers acting solely against Spain 
"under a commission from the revolutionary government of South America 
(which would not amount to acts of piracy)," of the legal possessors of property 
which they were taking to their own use without the violence necessary to fit a 
charge of "piracy ," merely criminals by the law of the flag of the vessel they had 
abandoned. These and other doubts he laid before the jury, which acquitted the 
defendants. 63 The charge was never appealed to higher courts, thus the question 
of whether a general international law of "piracy" existed under which 
American courts could even indirectly exercise a universal jurisdiction over the 
acts of foreigners directed solely against foreigners beyond the limits of the 
Palmer case as expanded in the Klintock case, to be discussed below, was not 
completely resolved. 

Jurisdiction. It would appear from U.S. v. Tully and Dalton 64 and from the 
passage in Molloy cited by Judge Davis that the English conception of the 
jurisdiction of the Admiral in England, which extended to all navigable waters, 
was applied to foreign waters also; that the phrase "high sea" had a somewhat 
different meaning than it has today, when it is distinguished from territorial 
waters. 

That this broad interpretation of the phrase "high sea" was in fact the 
interpretation held by Story and other expansive interpreters of the law needed 
to suppress "piracy," seems clear. In the other case in 1812, U.S. v. Ross, 65 the 
vessel was only a half mile from shore when the crew stabbed a passenger, and 
from two to six miles from shore when they threw his body overboard. Story 
declined to resolve the case on the basis of technicalities regarding the assault 
(stabbing) and the greater distance from shore when the passenger actually 
died or his body was disposed of. Instead he asked rhetorically whether the 
Act of 1790, section 8, in referring to "the high seas" was intended by the 
Congress to include foreign harbors. His answer was Yes. It means, he said: 



138 The Law of Piracy 

[A]ny waters on the sea coast which are within the boundaries of low water mark; 
although such waters may be in a roadstead or bay within the jurisdictional limits of a 
foreign government. Such is the meaning attached to the phrase by the common law; and 
supported by the authority of the admiralty, perhaps to a more enlarged extent. 66 

To the extent this language was applied only to an American flag vessel and 
acts within it, it seems to be addressing a different set of facts than those 
envisaged by the jurisdictional provisions of the Act of 1790, section 8. To the 
extent it was addressing facts within the contemplation o£ that statute, 
Story's reasoning seems inconsistent with the language of the statute, which 
clearly distinguishes between "high seas" and "any river, haven, basin, or 
bay," and specifically requires that in either case the act, to be within the 
terms of the statute must be "out of the jurisdiction of any particular state." 
In sum, his conclusion supports universal jurisdiction with regard to 
"piracy," defined in the Tully and Dalton case to cover all Common Law 
felonies that might be committed on the "high sea," and views the "high sea" 
as including foreign territorial waters; there is no language of limitation with 
regard to the flags of the vessels involved or the nationality of the accused or 
their victims. To the extent that construction rests on statutory language 
merely interpreted in the light of American municipal law (including the 
inherited concepts of English Common and Admiralty Law), it would seem to 
place the United States in a position of world policeman with regard to all 
felonies (by American definitions) occurring in any navigable waters. The 
underlying assumption seems to be the natural law of personal security, 
commerce and property, with overlapping jurisdiction available to all states 
to safeguard those natural rights. It is Molloy carried beyond Molloy 
himself, 67 to the far reaches of Jenkins. 68 

That this was in fact his view was confirmed some 20 years later when 
Story, in U.S. v. Pedro Gilbert & Others, 69 held that the British had 
overlapping jurisdiction with the United States in a case in which he appears 
to have assumed that there were no British contacts at all except as world 
policeman. Despite the American legislation to be discussed below 
superseding the Act of 1790 in large part, Story applied the same section, 
section 8, of that Act, so the case is perhaps better discussed here than in its 
chronological place. 

The defendants were Captain and crew of a Spanish vessel which had 
allegedly attacked and robbed an American vessel on the high seas. The 
Spanish vessel was later found in port in Africa fitted out for slave trade, and a 
British warship acting under arrangements between Great Britain and Spain 
for the suppression of the slave trade arrested the crew and took them to 
England. The British then transferred the prisoners to the United States for 
trial on the American charge of "piracy" growing out of the first incident. 
The legality of the "extradition," or administrative transferrence of custody, 
was not at issue. The degree to which the British might have had jurisdiction 



United States Law 139 

to try the accused for their attack on an American vessel was raised as a point 
by the defendants seeking to overturn their American conviction, and Story 
addressed the point in a long footnote: 

The British Government, on this occasion, finding [Spanish] persons in England in 
custody of one of its own officers, accused of piracy on an American vessel, chose to send 
those persons here, where the best evidence could be obtained, and where the greatest 
facilities and advantages for their trial were to be found. Over piracy, all nations 
exercise equal jurisdiction and the British Government might justly have exercised it in 
this case. But they preferred, that the offenders should be tried by the citizens of that 
country against whom the offence had been committed. . . . [Reciting the difficulties 
and dangers faced by the British commander, Captain Trotter, in capturing the 
accused.] Now what inducement had Captain Trotter to encounter all this, but a high 
sense of public duty, not merely to his own country, but to the commercial world. 70 

It is apparent that to Story there was not only universal jurisdiction to 
apply to "pirates" a municipal law that reflected what he must have felt to be 
universal prohibitions against unlicensed violence at sea, but there were no 
inhibitions to that application except the practical ones of marshaling 
evidence. The decision not to try the accused in England was based not on any 
lack of a legal interest in their activities against a foreign vessel, but only on 
the practicalities of the particular case. The legal interest seems to have been 
felt to derive from a universal duty to the "commercial world" to safeguard 
property rights based on natural law, and not the particular law of any 
country. Since the defendants were in fact transferred to the custody of, and 
taken to trial in, the United States, a country that clearly had the legal interest 
necessary to support such action against Spanish or other objection on much 
narrower grounds, as the country whose property law had been violated by 
the Spanish attack on an American flag vessel, this long passage was 
unnecessary to the disposition of the issue. Moreover, in view of the position 
on this point of extraterritorial reach of American criminal jurisdiction, and 
the way in which "piracy" was regarded as an "American" rather than an 
"international" crime by the majority in the Supreme Court in cases to be 
discussed below, this footnote by Story can probably best be regarded as an 
expression of a deeply felt "naturalist" position by a learned jurist who had 
lost the jurisprudential argument at a higher level. While Story's position 
never was adopted as the legal position of the United States Supreme Court, 
and in the Pedro Gilbert case was expressed as mere dictum, thus did not take 
a position of legal significance for purposes of analyzing the law as it was 
actually applied, that approach has continued to seem persuasive to many 
jurists regardless of the dominance of positivism as the philosophy of the 
Supreme Court. Story's approach certainly represents a strain of legal 
thought that has been influential in the evolution of the law regarding 
"piracy" in the United States. 

Since the statute of 1790 was taken by 1812 to define "piracy" for purposes 
of American trials, and trials of accused "pirates" could not be the subject of 



140 The Law of Piracy 

foreign complaint based on the substance of the law defining "piracy " unless 
the accused "pirate" were considered to be beyond the proper reach of 
American prescriptive jurisdiction, the key question before the American 
courts was the proper reach of that jurisdiction. Story's approach, that all 
states have adequate territorial jurisdiction in navigable waters anyplace (by 
defining "high sea" to include a foreign bay or roadstead) subject only to the 
overlapping jurisdiction of other states, but not any notion of the territorial 
state having exclusive jurisdiction over its ships or close-in waters, was not 
wholly accepted even in the United States. Indeed, one of the very first 
surviving opinions of an American Attorney General, and one of the most 
emotional, was an opinion by Edmund Randolph dated 14 May 1793 to 
Secretary of State Thomas Jefferson holding that Delaware Bay (and by like 
logic Chesapeake Bay) was "internal waters of the United States and capable 
of being closed to foreign vessels" and totally subjected to American law. 71 
Since Story's language was not restricted to instances of "piracy, "but rested 
on assertions of the Admiral's historical jurisdiction in English law for all 
felonies (which Story defined as "piracy" — all felonies within the Admiral's 
historical jurisdiction as viewed in England) it must have seemed intemperate 
to some of his colleagues concerned with limiting foreign exercises of 
jurisdiction in American bays and roadsteads. 

The question received a definitive answer construing the Act of 1790, 
section 8, in 1820. Bushrod Washington, sitting as a District judge in 
Philadelphia, had charged a jury in 1819 along the same lines Joseph Story 
would have used, that Peter Wiltberger, who killed a seaman on board an 
American vessel at anchor in the Tigris River in China, about 35 miles inland, 
14 miles below Canton, was acting on the "high sea" within the sense of the 
Act of 1790. Wiltberger was convicted. 72 On appeal ultimately to the 
Supreme Court, the conviction was reversed squarely on this point. The 
Court, which included Justice Story, was unanimous; testimony to the 
persuasiveness of Chief Justice Marshall, who wrote the opinion, and the 
intellectual honesty of Justice Story when persuaded of his error. Marshall 
took a strict positivist position. The criminal statutes must be construed 
strictly to protect individuals from the exercise of arbitrary power by judges. 
"The power of punishment is vested in the legislative, not the judicial 
department," he wrote. The legislative purpose in enacting the statute of 
1790, section 8, was not to assert jurisdiction over everybody any place, but 
only in a certain place, the high sea and rivers, havens, basins or bays outside 
the jurisdiction of any state. The Tigris River being wholly within the 
jurisdiction of China, the American courts cannot derive jurisdiction over the 
statutory offense from the words of the statute. Therefore, Wiltberger went 
free. 73 Henry Wheaton, probably the most celebrated American scholar of 
international law of the first half of the nineteenth century, wrote a long 
analysis of the issue. In his view both Story and Marshall were right and 



United States Law 141 

Story's retreat was not a retreat in principle: English Admiralty jurisdiction 
indeed extended into foreign ports, and American Admiralty jurisdiction 
could do the same. But, he concluded, the statute of 1790 did not go so far. 
Since federal criminal law in the United States rested on statute and not on 
Common Law except as embodied in statutes, the lesser description of 
jurisdiction contained in the statute limited the jurisdiction to less than the 
court could have exercised at English law. The fact that the Congress 
apparently did not intend to allow the court to exercise its full jurisdiction in 
cases of "piracy " in foreign waters meant that the court could not exercise its 
power over cases envisaged in the statute of 1790 beyond the limits set in that 
statute. 74 Another statute could go farther without creating any legal 
problems in the international legal order, in his view. But as long as no statute 
in fact went farther, that issue would not have to be resolved. Wheaton 
apparently gave no weight to the policy and possible legal reasons why the 
Congress had not authorized the exercise of jurisdiction by American courts 
in cases occurring in foreign navigable waters. It seems noteworthy that 
Wheaton did not argue the obvious bases for jurisdiction, the flag of the vessel 
and Wiltberger's American nationality. Indeed, since the incident occurred 
within an American vessel, it is not clear why any international concept of 
"piracy" was thought to be involved, or any inhibition on applying American 
Admiralty prescriptions. Wheaton 's sympathies obviously lay with the 
jurisprudential approach taken by Story as the entire point of his comment 
was to preserve the theoretical possibility of universal jurisdiction based on 
territorial principles and natural law against a Supreme Court majority 
(including Story himself) that had carefully taken a very different position. 
The question as to whether American jurisdiction covered acts by 
foreigners on the high sea against victims who were not Americans reached 
the Supreme Court in 1818. The holding in U.S. v. Palmer, et al., 75 among 
many other points, 76 included the important rule of construction phrased by 
Chief Justice Marshall as follows: 

The constitution having conferred on congress the power of defining and punishing 
piracy, there can be no doubt of the right of the legislature to enact laws punishing 
pirates, although they may be foreigners, and may have committed no particular offence 
against the United States. The only question is, has the legislature enacted such a law?. . . 
[No.] [N]o general words of a statute ought to be construed to embrace [offenses] when 
committed by foreigners against a foreign government. 77 

Justice William Johnson dissented, going even further than Marshall and 
the majority in denying power to the legislature. In his view "congress cannot 
make that piracy which is not piracy by the law of nations in order to give 
jurisdiction to its own courts over such offences. " 78 A consensus was reached 
in the "Certificate" customary at the time to blend the views of all the 
justices together on the broadest common position: 

[T]hat . . . the crime of robbery, committed by a person on the high seas, on board of any 
ship or vessel belonging exclusively to subjects of a foreign state, on persons within a 



142 The Law of Piracy 

vessel belonging also exclusively to the subjects of a foreign state, is not piracy within 
the true intent and meaning of the act [of 1790, section 8] . . . and is not punishable in the 
courts of the United States. 79 

Shortly afterwards, indeed, after the passage by the Congress of further 
legislation whose effect was to overrule the quoted part of U.S. v. Palmer 80 
but relating to facts occurring before that later legislation took effect, the 
Supreme Court reduced the impact of U.S. v. Palmer by asserting American 
jurisdiction in cases in which no particular foreign jurisdiction would serve 
despite the fact that the accused "pirates" and their victims were not 
American nationals. Chief Justice Marshall spoke for a unanimous Court in 
U.S. v. Klintock, a case involving a vessel sailing under the nominal control of 
an unrecognized Mexican authority during a revolution in Mexico, but 
exceeding any reasonable powers that could have been based on the laws of 
war. Klintock had seized a Danish ship "animo furandi," and "not . . . jure 
belli." 81 The capturing vessel was clearly "foreign." Marshall wrote: 

Upon the most deliberate reconsideration . . . the Court is satisfied, that general piracy, 
or murder, or robbery, committed in the places described in the 8th section [of the Act of 
1790], by persons on board of a vessel not at the time belonging to the subjects of any 
foreign power, but in possession of a crew acting in defiance of all law, and 
acknowledging obedience to no government whatsoever, is within the meaning of this 
act, and is punishable in the Courts of the United States. Persons of this description are 
proper objects for the penal code of all nations; and we think that the general words of 
the act of Congress applying to all persons whatsoever, though they ought not to be so 
construed as to extend to persons under the acknowledged authority of a foreign State, 
ought to be so construed as to comprehend those who acknowledge the authority of no 
State. Those general terms ought not to be applied to offences committed against the 
particular sovereignty of a foreign power; but we think they ought to be applied to 
offences committed against all nations, including the United States, by persons who by 
common consent are equally amenable to the laws of all nations. 82 

The Certificate concludes: 

That the act of the 30th of April, 1790, does extend to all persons on board all vessels 
which throw off their national character by cruizing piratically and committing piracy 
on other vessels. 83 

The case illustrates the problems of judges caught between a natural law 
orientation and positivist one. By natural law approaches, the rule towards 
which the Court was striving seems more or less clear. There is, in that 
conception, an underlying law forbidding interference with property as 
defined by any national legal system or by natural law, but that natural law of 
property yields to the positive law of any state within whose territorial or 
other traditional jurisdiction (such as the nationality of the possessor of the 
physical property) it comes. On the high sea, the law of the state whose flag is 
flying over a vessel authorized by that law to fly it, governs. A person acting 
outside that vessel, thus outside the flag-based jurisdiction traditionally 
analogized to territorial jurisdiction, can interfere in property rights only by 



United States Law 143 

superimposing some other state's positive law on the positive law of the flag 
state. This could be done by capture or, perhaps, even sinking the first vessel 
and taking the property on board the capturing vessel or replacing the 
captured vessel's flag with the captor's. The law of naval captures and 
privateering evolved in Europe to prescribe the necessary rules as between 
the states of Europe and other states participating in the European legal order, 
such as the former European colonies in the Western Hemisphere and, if they 
wanted to participate in the system, the Muslim states of the Mediterranean 
Sea and some other societies that fit the pattern elsewhere, such as Thailand 
and China. Disputes over the lawfulness of the capture at sea and the proper 
disposition of captured property could as among these states be resolved by 
diplomatic negotiation, counter-captures under limited letters of marque and 
reprisal, or even the ultimate arbitrament of war. To the naturalist judges of 
the United States Supreme Court in the early nineteenth century, the word 
"piracy" could properly be used to attach legal results to captors outside the 
system; those who sought to change property rights by naval capture but who 
lacked the authority of a state within the system to supersede the law of the 
flag state of the captured vessel with any new positive law. And natural law 
would retain the rights to property in the holder prior to the capture. The 
function of the international law of "piracy," as it was then conceived, was 
thus to fill a gap in the legal order; to render punishable as "outlaws" those 
who operated outside the system and whose actions were inconsistent with 
the law within the system. All that was necessary for "standing" was that the 
acts of the "pirates" impinge upon the system somehow. Normally this was 
considered to flow from their taking of property against the rules of the 
system, i.e., without the authority of a state behind them, and from people 
whose property rights were blessed by the positive law of a state within the 
legal order. 

But the system, the legal order of Europe in the early nineteenth century, 
required "standing" of any "state" within the system before a municipal legal 
rule could be applied. In the case of captures at sea, the need for "standing" 
was supplied by some legally sufficient contact with the event, normally the 
connection, posited to rest on a fictitious "social contract," between the 
victim of the depredation and some state within the system. Attempts by 
"naturalist" jurists, like Story, to rationalize each state's authority to police 
the seas, foundered on the hard rocks of the legal order itself, which limit each 
state's jurisdiction to those cases in which the state has "standing." Rhetoric 
of both naturalists and positivists in the late 17th century has been noted in 
which the legal order's requirement for "standing" was disregarded, but U.S. 
v. Palmer appears to be the first case in which a systematic treatment of the 
question was attempted in the context of a real case, and American 
"standing" was found lacking despite the apparent positivist decision by the 
Congress in 1790 to disregard the international legal order in authorizing 



144 The Law of Piracy 

American courts to suppress an undefined "piracy." The naturalist reaction, 
to find "standing" in U.S. v. Klintock by applying natural law as part o( 
Blackstone's concept of the "law of nations" — the natural law that is 
reflected not in the system of international distributions of authority to states, 
but in the common municipal laws of all states participating in the system — 
filled the gap. Under that approach, all states would have had equal rights to 
apply their municipal laws related to "piracy," defined as robbery within the 
municipal law jurisdiction of the "Admiralty," that branch of the municipal 
court system that applied municipal law rules, including the law merchant 
and other rules labeled part of the "law of nations" by Blackstone, to the acts 
of foreigners against foreigners all on board foreign vessels, but only when the 
accused "pirates" had no state system within the legal order to license the 
taking in question. And even when the accused "pirate " was found flying the 
Jolly Roger or some false, non-authorized national flag, or flag of some 
unrecognized authority (i.e., some pretender to authority not accepted by the 
capturing state as empowered within the legal order to issue a license), the 
natural law background remained strong in Marshall and Story. The accused 
must have been caught engaged not in a taking that might be justifiable but for 
the lack of recognition, but in a taking that was robbery by the English 
municipal law of robbery, involving animum furandi, the intention to take for 
personal gain. Apparently, no middle ground was seen between such a taking 
and a taking^We belli, by the law of war, which was not "piracy" even if the 
taker did not have a license issued by a recognized authority. 

Clearly, the system implied in U.S. v. Klintock was incomplete; many fact 
patterns can be imagined that do not fit neatly into the categories supposed by 
the Supreme Court to fill the field. The principal gap fell in the contemplation 
of the availability of the law of war to unrecognized belligerent rebels such as 
the American forces had been a generation before — would it not have seemed 
monstrous to Chief Justice Marshall's generation if John Paul Jones had been 
hanged by the British not as a rebel but as a mere "pirate?" 84 

The Substantive Law of 1819 

The Attempt to Avoid Problems of Definition, Jurisdiction and 
Foreign Commissions. The immediate result of U.S. v. Palmer in the halls 
of the Congress was the passage of a statute that simply ignored all the legal 
problems. The Act of 3 March 1819 85 provided: 

Sec. 5. . . . That if any person or persons whatsoever, shall, on the high seas, commit the 
crime of piracy, as defined by the law of nations, and such offender or offenders, shall 
afterwards be brought into or found in the United States, every such offender or 
offenders shall upon conviction thereof ... be punishable with death. 86 

The Act of 1819 was limited in time to one year, and this section was 
continued without limit of time by section 2 of another statute passed on 15 
May 1820. 87 This last Act with minor amendments, is still in force. 88 Instead o( 



United States Law 145 

defining the substantive law of "piracy," it refers to a definition supposed to 
be contained in the "law of nations;" instead of addressing the jurisdictional 
point raised by Justice Johnson and acknowledged in the Supreme Court's 
Certificate, it takes an assertive "positivist" position as to the extent of 
national jurisdiction apparently based on universality. 

The new statute was immediately applied. A foreign vessel putting out 
from "Buenos Ayres," the state now called Argentina formed out of the 
Spanish Vice-Royalty of La Plata by 1816, was seized by mutineers including 
Americans and turned to general "cruizing" without any commission from 
anybody. The question was the amenability of the crew to the jurisdiction of 
the American court before which both non-Americans and Americans had 
been taken. Chief Justice Marshall sitting as an appeals judge in the Federal 
Circuit Court in Virginia concluded: 

It was impossible that the act [of 1819] could apply to any case if not to this. The case was 
undoubtedly piracy according to the understanding and practice of all nations. It was a 
case in which all nations surrendered their subjects to punishment which any 
government might inflict upon them, and one in which all admitted the rights of each to 
take and exercise jurisdiction. Yet the standard referred to by the act of congress . . . 
must be admitted to be so vague as to allow of some doubt. The writers on the laws of 
nations give us no definition of the crime of piracy. 89 

In view of Marshall's doubts as to the substance of the law, the jury was 
instructed to give a special verdict as to the facts alone, and the case was 
referred to the Supreme Court for argument as to whether there was any such 
thing as "the crime of piracy, as defined by the law of nations" within the 
meaning of the Act of 1819. 90 

At the Supreme Court level the case was called U.S. v. Smith and became 
the leading case construing the Act of 1819. Justice Joseph Story wrote the 
Court's opinion. He wrote: 

There is scarcely a writer on the law of nations who does not allude to piracy as a crime 
of a settled determinate nature . . . [Rjobbery or forcible depredations upon the sea, 
animo furandi, is piracy. 91 

His citations include a footnote seventeen pages long in which are cited 
many of the works analyzed above, including Blackstone, the trials of 
Dawson, Kidd and Green, and the writings of Grotius and Wooddeson, 
among others. 92 To support the assertion that the English Common Law of 
piracy is identical with the substantive crime of "piracy " at international law 
he cited Hedges 's and Jenkins's charges to juries quoted above, 93 and 
Blackstone. 94 There seems to be no independent legal argument other than 
long quotations from the various ancient authorities, and no distinction is 
drawn as to the jurisprudential bases for the various opinions or their possible 
inappropriateness to the narrow facts to which those opinions were applied. 
But Story's citations focusing on Marshall's single observation relating only 
to "the writers on the laws of nations," but not to the law of nations, or 



146 The Law of Piracy 

international law, itself, seems to have convinced all but one of his colleagues 
on the bench. The one dissenter was Justice Henry Livingston, who read the 
words of the Constitution strictly to authorize the Congress to define 
"piracy," not just to refer to a foreign law, international law, for this 
purpose. In his view, a criminal statute, violation of which might result in 
hanging, should define the prohibited acts directly. 95 The Certificate which 
issued disregarded Livingston's position and found the reference to the law of 
nations in the statute of 1819 to be sufficient, and that law sufficiently clear, to 
justify hanging Smith, Chapels and the others. 96 

The decision in U.S. v. Smith appears to have broken a logjam of "piracy " 
cases, all of which were summarily handled by the Supreme Court 
immediately afterwards. From the opinions loosely tied together in this series 
of cases under one heading, U.S. v. Pirates, 97 it is clear that Justice Johnson 
was not fully convinced by Story and that there were many loose ends still 
remaining in the American approach to defining "piracy" and the scope of 
American courts' jurisdiction under the Act of 1819. Justice Johnson found an 
American legal interest sufficient for "standing" in all the cases but one, and 
in that case the facts were found to bring the situation within the scope of U.S. 
v. Klintock — the defendants having acted so as to lose all national character. 
In U.S. v. John Furlong alias John Hobson 98 the Certificate is explicit in 
finding a particular American basis for extending jurisdiction over the acts of 
the Irish defendant against an English victim: 

[I]t was not necessary that the indictment charge the prisoner as a citizen of the United 
States, nor the crime as committed on board an American vessel, inasmuch as it charges 
it to have been committed from [emphasis added] on board an American vessel, by a 
mariner sailing on board an American vessel." 

The American contact was the flag of the attacking vessel. In the one case in 
which no American contact equivalent to this could be found, U.S. v. David 
Bowers and Henry Mathews, U.S. v. Klintock was the sole authority needed 
to support a Certificate holding: 

That the act [of 1790] does extend to piracy committed by the crew of a foreign vessel on 
a vessel exclusively owned by persons not citizens of the United States, in the case of 
these prisoners, in which it appears that the crew assumed the character of pirates, 
whereby they lost all claim to national character or protection. 100 

The other cases all involved major American contacts making it 
unnecessary to explore the possible incorporation of any rules of international 
law into the municipal law of the United States. 

Justice Johnson appears to have had serious reservations about U.S. v. 
Bowers and Mathews. In an unclear separate opinion adverting to the one 
case in which all the defendants are foreigners on board vessels owned by 
foreigners, he wrote that in his view U.S. v. Palmer was the controlling 
precedent rather than U.S. v. Klintock, apparently disagreeing with the 
majority that the foreign "pirates" had wholly cast aside their national 



United States Law 147 

allegiances. Johnson nonetheless seemed to be willing to join with the 
majority on the strange rationale that while murder would not be triable in 
the United States other facts being the same, "piracy" being such a horrible 
crime in its very nature was amenable to American jurisdiction. 101 But why 
"robbery" is to be considered more horrible than "murder," and how 
revulsion at the substance of the crime translates into rules of jurisdiction 
which must be resolved before any court erected by any municipal system can 
hear the substance of any accusation, is unexplained. 

Justice Story's expansive view of American jurisdiction to right the wrongs 
of the world was reflected also in two other cases in this series upholding jury 
verdicts that labeled as "high seas" for the purpose of "piracy" charges, 
roadsteads within three miles of a foreign state's coast: "[F]or, those limits, 
though neutral to war, are not neutral to crimes." 102 The logic of U.S. v. 
Ross 103 was apparently felt to be persuasive, perhaps in part because the Court 
remembered the origins of the American three-mile limit in a series of 
Secretary of States' almost arbitrary selections of a distance within which 
foreign gunboats could be excluded without offending any foreign powers in 
order to support American neutrality. 104 The notion that the Admiralty 
jurisdiction of all states extended as a matter of overlapping territorial 
jurisdiction to the navigable waters of the entire globe, rather than merely 
within the vessels of the various states, seems to be implicit in the holding. 

Substance Reexamined. In one respect the expanded view supported by 
Story lost in this series of cases. The definition of the substance of the crime of 
"piracy" asserted by Story in U.S. v. Tully and Dalton 105 to include all 
"felonies" committed within Admiralty jurisdiction, not merely "robbery," 
was rejected by Story himself when forced to review the "writers" in U.S. v. 
Smith. 106 

Congress adopted as a matter of positive law Story's view of the utility of 
the legal label "piracy" to condemn whatever crimes the municipal law 
system of the United States wanted to attach the label (and its legal results) to 
without regard for the historical evolution of the concept or the 
jurisprudential concerns that run through the earlier writings. The most 
notable legislation concerned the slave trade. Story loathed slavery as a 
matter of natural law. While little could be done to abolish slavery within any 
particular state of the new Union under the positive law compromises of the 
Constitution of 1787, the Congress had the power to regulate foreign 
commerce and as early as 22 March 1794 had enacted a law forbidding the 
involvement of any person within the United States in the carriage of slaves in 
commerce between the United States and any foreign country. 107 On 10 May 
1800 another Act forbade any American citizen or resident serving on board a 
foreign slave-trading vessel or holding any interest in the foreign slave 
trade. 108 The piracy statute of 1819 does not mention the slave trade. But the 
renewing statute of 15 May 1820 expressly makes it "piracy" with a penalty 



148 The Law of Piracy 

of death for Americans to be engaged in the slave trade abroad or to detain 
a "negro" or "mulatto" with the intent to enslave (except for the 
recapture of persons (!) already held in slavery by the operation of the law 
of a state of the United States). 109 This use of the word "piracy" in 
connection with the international slave trade presumably represents an 
attempt by Story and others to develop the international law, as the "law 
of nations, " by changing the municipal law of the United States, using the 
label, and hoping that other states in the international legal order would 
follow suit. To the extent that was the aim, it failed. 110 The American 
legislation remained municipal law in the United States, but the treatment 
of American active participants in the foreign slave trade as "pirates" 
before American courts did not make it "piracy" at international law any 
more than treason against the established order of England was made 
"piracy" in the international legal order by the hanging of James's (and 
Louis XIV's) Irish privateers in 1693. nl 

The interplay between American municipal law resulting from the 
statutes of 1819 and 1820, and the international law regarding the slave 
trade, and the retreat Story was forced into against his own inclinations 
was made clear shortly afterwards when an American naval vessel under 
Lieutenant Stockton seized a French slaver off the coast of Africa and 
France denied American jurisdiction to consider the case. Story upheld the 
American jurisdiction in principle, but turned the vessel over to France 
with an elaborate opinion seeking to bind France to apply its municipal 
anti-slave-trade laws passed as a result of British pressures and the 
Congress of Aix-la-Chapelle. 112 Story's reasoning is naturalist in holding 
the slave-trade to be a violation of the law of nations (because illegal under 
the law of all civilized states as well as in its nature inconsistent with 
Christian and universal moral principle). But he finds positivist reasons in 
policy for not applying the American municipal law: "The American 
courts of judicature are not hungry after jurisdiction in foreign cases, or 
desirous to plunge into the endless perplexities of foreign jurisprudence. " 
He did not mention "piracy" or explain why the perplexities of foreign 
jurisprudence would be pertinent to a "law of nations" case. 113 

The issue appears to have been laid to rest in 1855. In that year a vessel sailing 
under the American flag was taken to Philadelphia under arrest for participating 
in the slave trade. The master of the vessel, Darnaud, was tried for "piracy" 
under the Act of 14 May 1820 sees. 4 and 5. 114 There was evidence that he was 
actually of French nationality despite the laws of the United States restricting 
masters' licenses for American flag vessels to American nationals. There was 
also a good deal of confusion as to the true ownership of the vessel, and it seems 
likely that a true American owner had attempted to mask his illegal operations 
behind various foreigners to whom title had been given, but not control or the 
legal capacity to transfer title further. Judge Kane charged the jury with regard 



United States Law 149 

to the applicability of the American statute by which participation in the 

slave trade was made a species of "piracy:" 

[N]o State can make a general law applicable to all upon the high sea. Where an act has 
been denounced as crime by the universal law of nations, where the evil to be guarded 
against is one which all mankind recognize as an evil, where the offence is one that all 
mankind concur in punishing, we have an offence against the law of nations, which any 
nation may vindicate through the instrumentality of its courts. Thus the robber on the 
high seas, the murderer on the high seas, the ravisher on the high seas, pirates all of them, 
recognizing no allegiance to any country, because the very act violates their allegiance 
to all their fellow men, if caught, may be punished by the first taker. And so too, if the 
nations of the so-called civilized world, who are fond of calling themselves the whole 
world, and of arrogating to themselves somewhat too readily all the rights that belong to 
the whole world, could for once unite in defining that some one act should be regarded 
as a crime by all, it may be that after such an agreement by all the world, the courts of 
any one nation might without reference to the nationality of the individual undertake to 
punish the offence he had committed. 

But so soon as we leave these crimes of universal recognition, the jurisdiction of a State 
over the acts of men upon the high seas becomes circumscribed. 

But it is only in the two cases, where the individual accused is himself a citizen ... or 
where the property upon which the individual was found perpetrating a wrong was 
properly recognized as American . . . that the United States can make a law which would 
be binding upon all citizens or which could be enforced by courts of justice; and I do not 
hesitate to say, after something of mature consideration, that if the Congress of the 
United States, in its honorable zeal for the repression of a grievous crime against 
mankind, were to call upon the courts of justice to extend the jurisdiction of the United 
States beyond the limits I have indicated, it would be the duty of courts of justice to 
decline the jurisdiction so conferred. 

That the offence is called in our particular statute piracy, does not vary the legal 
position. . . . Piracy is essentially an offence against the universal law of the sea. It 
assumes that the individual has thrown off his allegiance to mankind. He is the enemy of 
all who meet him. The slave trade, however horrible it may be, is not within that 
category. 115 

Under this charge, Darnaud was acquitted of "piracy." 116 The attempt of 
Justice Joseph Story to structure the American courts' approach to the 
international legal order in such a way as to enforce against foreigners 
whatever assertion of jurisdiction the Congress might see fit to make for 
policy reasons failed. The logic espoused by Judge Kane seems clear; it is 
based upon the existence of an international legal order that withholds from 
states the power to legislate with regard to the acts of foreigners abroad 
except in very narrowly prescribed cases. Participation in the slave trade, 
because consistent with the international legal order, even if horrible and 
possibly sinful, even if a violation of the law of nations in the Zouche- 
Blackstone-Story sense of violating the municipal laws of all states, was not 
inconsistent with the international legal order; indeed it was part of the trade 
between states that is a reason for the existence of the international legal 
order. Thus, to Kane it must have seemed that Castlereagh was wrong at 
Aix-la-Chapelle and France and Sir William Scott were right: 117 The law of 



150 The Law of Piracy 

nations as it was reflected in the international law of the mid-nineteenth 
century was not conceived as the natural law evidenced by the concurrence of 
municipal legislation of all "civilized" states; it was the positive law, with no 
moral component divorced from the assent of states, evidenced by treaty or 
practice which in turn depended on political evaluations of the desirability of 
concluding the treaty or engaging in the practice. 

It is perhaps worth noting explicitly that the Zouche-Blackstone idea 
that the law of nations, in the sense of the natural law evidenced by 
unanimity in the municipal laws of "civilized" states on some particular 
point, was part of "international law" in the sense of the law between 
states, seems to have bred more confusion than clarity in the minds of the 
naturalist jurists of the early 19th century. To legislators grappling with the 
practical problem of making rules for the governance of their societies, the 
idea that their rules, when coinciding with the equivalent rules of similar 
societies, represented the expression of some higher law and not of political 
choice was, to say the least, strange. They knew the argument and 
compromise that had been involved in drafting the rules and enacting them 
(through whatever political process). They also knew that what seems an 
incomplete trend or evidence of imperfect understanding of the underlying 
rules to a judge, teacher or other outsider, was more likely the balance of 
the political forces whose cooperation was necessary to the consensus 
process of legislation; that "imperfection" or "incompleteness" in 
expressing the "natural law" was evidence of the misperception of the 
outsider as to the "natural" rule, because the arguments that had resulted in 
the "imperfection" or "incompleteness" were sufficiently compelling, and 
reflective of important social interests, to be as "natural" as the arguments 
supporting a more sweeping rule. The evidence of the American experience 
of this time seems to have meshed with the evidence of British experience 
of the late 17th century and of this time as well, that rules of "international 
law" cannot be made binding on other states by the act of legislation or 
even judicial pronouncements of a single state or even a large majority of 
states. Thus, while a positivist approach to assertions of national 
interpretations of the law and its utility to express national policy even in 
international affairs resulted in legislation that used the word "piracy" in a 
sense desired by the national law-makers and in the hope of results in the 
international legal order, 118 that hope was futile. The structure of the 
international order, giving to each state the same powers of interpretation, 
make national legislation incapable of expressing "natural law" in a sense 
persuasive on others who do not share the identical perception of the 
"natural law." The argument by Blackstone, Story, Castlereagh 119 and 
others is thus circular; it rests on the a priori acceptance of the rule by the 
state seeking to be bound to it by international law arguments based on 
principles already found unpersuasive to its municipal legislature. 



United States Law 151 

This is not to say that the naturalist argument regarding underlying 
principles is wholly mistaken, only that its application to specifics can never 
be presumed. 120 The 1945 Statute of the International Court of Justice, which 
is binding on all members of the United Nations and a few other states as 
treaty law even if not codifying generally accepted formulae, requires the 
Court to apply "general principles of law recognized by civilized nations" as 
part of the body of rules contained in international law. 121 Whether those 
"general principles" have anything to do with "piracy, "and whether, if they 
do, they can be applied to anything else, remains doubtful in the light of the 
experience of the United States in trying to use them to expand the concept to 
cover the foreign slave trade and felonies other than "robbery" and in areas 
other than the high seas outside the territorially-based assertions of 
jurisdiction of any state, and to persons and incidents not related in legally 
significant ways to the state seeking to apply its law (or its conception of the 
international law) of "piracy." 

Jurisdiction Reexamined. Story's reasoning in the La Jeune Eugenie, 
declining to exercise over a wholly French vessel the American jurisdiction 
asserted in the Act of 1820, 122 seems to reflect the policy underlying the 
distribution of legal powers, the jurisdiction of national courts and the 
problem of "standing" inherent in the international legal order. It is thus 
more compelling as a demonstration of the limits of "natural law" than of the 
substantive law regarding the slave trade that Story felt truly reflected 
"natural law," and which he declined to apply despite asserting a universal 
American jurisdiction both to legislate and to enforce American "universal" 
law against foreigners abroad. As Story's reasoning demonstrates, it is 
possible to assert this distribution of legal powers in the international legal 
order to rest on either natural law growing out of the structure of 
international society, or positive law — the convenience of the enforcing state 
in a particular situation — thus it is not necessary to resolve the jurisprudential 
disputes as to the best model to posit for an understanding of the international 
legal order. The policy argument given by Story will be very strong in any 
particular case. It, in turn, rests on unstated perceptions as to the convenience 
of the state system and narrower conceptions of territorial jurisdiction than 
he was willing to admit openly. 

If this is so, then the "crime of piracy, as defined by the law of nations" 
seems to be simply the extension of municipal laws relating to crimes labeled 
"piracy" for historical reasons, largely resting on confusion and polemics, 
and related to the international legal order by another confusion between the 
"law of nations" and the "law between states" the former being merely a 
collection of the similar municipal laws of states which regard themselves as 
the sole members of the system. The similarities seem to rest on policy reasons 
related to the needs of commerce, not on underlying natural moral and legal 
principles. Indeed, ironically, the underlying principles seem more nearly 



152 The Law of Piracy 

related to the unwritten constitutional order of international society, and 
make the conception of a substantive "natural law" valid for all states because 
reflecting immutable substantive principles, inconsistent with the system and 
an impediment to a clear understanding of it. Story himself seems to have 
reached this conclusion by 1834. 123 

In some other respects, what Story could not win by traditional legal 
argument based on natural law, he and his supporters were able to win briefly 
through changes in the positive law; by the blend of law, morality and policy 
in legislation by the United States Congress. The Act of 15 May 1820, 124 in 
addition to extending indefinitely section 5 of the Act of 1819, 125 and 
otherwise regulating the exercise of the powers of the President to authorize 
captures at sea, contained a new provision codifying Story's view as to the 
territorial reach of American Admiralty jurisdiction: 

Sec. 3. . . . That if any person shall, upon the high seas, or in any open roadstead, or in 
any haven, basin or bay, or in any river where the sea ebbs and flows, 126 commit the 
crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any 
ship or vessel, or the lading thereof, such person shall be judged to be a pirate; . . . And if 
any person engaged in any piratical cruise or enterprise, or being of the crew or ship's 
company of any piratical ship or vessel, shall land from such ship or vessel, and, on shore 
commit robbery, such person shall be adjudged a pirate. 127 

The possibility of a clash of jurisdictions was noted with a proviso: 

Provided, that nothing in this section contained shall be construed to deprive any 
particular state of its jurisdiction over such offences, when committed within the body 
of a county [sic; this was obviously copied from the statute of 1536], or authorize the 
courts of the United States to try any such offenders, after conviction or acquittance 
[acquittal], for the same offence, in a state court. 

But the references to counties and to state courts makes it likely that what 
was in the mind of the Congress was not a clash between the United States and 
foreign countries, but between Federal and state authorities within the United 
States alone. On the other hand, the United States had not authorized any courts 
under the Constitution, except military tribunals and counsular courts, to hear 
criminal cases arising outside of the territorial jurisdiction of the United States 
and the high seas. 128 Thus the degree to which the territorial view of Admiralty 
jurisdiction, urged by Story and evident in many of the writings and cases noted 
above, was actually adopted by the Congress is doubtful. 

As was pointed out with regard to the positivism of Gentili, where 
concepts of natural law and inherent limits to sovereignty are not regarded as 
persuasive, policy arguments frequently are persuasive to reach the same 
results. It is frequently better to refrain than to exercise an assertable 
jurisdiction when inordinate expenses must be borne to transport witnesses 
and inordinate delays are involved when a court cannot be set up in the area of 
the acts over which a state seeks to apply its law. The British had solved the 
problem in 1700 by authorizing the establishment of colonial tribunals to hear 



United States Law 153 

"piracy" cases. In 1820 the United States did not have the same resources or 
distant interests involving sea power that the British felt. And even the most 
assertive positivist in the administration or the Congress at that time would 
not have urged that America establish a land-based court in territory ruled by 
a foreign sovereign with his own judicial system; to supersede, or even 
supplement a foreign judicial system and apply American law in a foreign 
sovereign's territory were major steps involving treaties 129 or the extension of 
national sovereignty, colonization or imperial expansion, in disregard of local 
authority. 130 The diplomatic and military consequences of such a policy made 
it inadvisable to apply it in distant territory at that time. 131 

The practical restraints the international legal order, with its emphasis on 
territory as the prerequisite for enforcement jurisdiction, fixes upon the legal 
powers of states to legislate effectively within that order through arguments 
based on the natural law evidenced by coinciding municipal legislation, are 
implicit in the leading American text of the period. Chancellor James Kent o^ 
New York in the first edition of his Commentaries on American Law (1826) 132 
regarded the public law of nations as "enforced by the censures of the press, 
and by the moral influence of those great masters of public law, who are 
consulted by all nations as oracles of wisdom" and ultimately by "the penal 
consequences of reproach and disgrace" and the hazards of "open and solemn 
war by the injured party. " But offenses that can be committed by individuals 
he considered as enforced by the "sanctions of municipal law," specifying not 
individual acts of unneutral service when the state is seeking to maintain 
neutrality, or similar acts violative of national policy alone, but "violations of 
safe conduct, infringement of the rights of ambassadors, and piracy." 133 
"Piracy" he defined merely as robbery, or a forcible depredation on the high 
seas, without lawful authority, and done "animofurandi" citing U.S. v. Smith 
as authority for the assertion 134 and he asserted with Story that "There can be 
no doubt of the right of Congress to pass laws punishing pirates, though they 
may be foreigners, and may have committed no particular offence against the 
United States." 135 But he applied that broad language only to cases noted 
above in which the "pirate" had lost all his national character by acting "in 
defiance of all law, and acknowledging obedience to no government or fiat 
whatsoever. " The Acts of 1790 and 1819 as continued and expanded in 1820 he 
noted: 

Did not apply to offences committed against the particular sovereignty of a foreign 
power; or to murder or robbery committed in a vessel belonging at the time, in fact as 
well as in right, to the subject of a foreign state, and, in virtue of such property, subject 
at the time to its control. But it [the Act of 1790] applied to offences committed against 
all nations, by persons who, by common consent, were equally amenable to the laws of 
all nations. 136 

He thus repeated the compromise on the Supreme Court noted by 
Wheaton, that allowed the wide assertion of jurisdiction urged by Story to 



154 The Law of Piracy 

survive alongside a restrictive interpretation of the statutes under which that 
jurisdiction was interpreted to avoid a clash with foreign jurisdictions. And 
he emphasized the restriction by referring to the "particular sovereignty" of 
other states as a limit to American assertions, and to "common consent" as the 
basis for a wider exercise of jurisdiction if it were ever to be attempted. 

Foreign Commissions and Unrecognized Belligerents 137 

The Statutes. The historical experience of the United States with 
unrecognized belligerents being classified as "pirates" dates back to 1777, 
with the licensees of the Continental Congress itself so classified by British 
statute. 138 Those statutes envisaged the detention of American privateers as 
"pirates," with a possibility of criminal trial at Executive discretion in 
England. There appear to have been no prosecutions for "piracy" as a crime 
either under the law of England or under international law growing out of the 
licensed activities of American privateers during the War. American 
privateers conducting captured vessels into neutral ports during those years 
were either welcomed on terms of equality with other belligerent vessels or 
turned away after British protest. The British authorized reprisals against 
Dutch shipping in retaliation for the Dutch refusing to deny port facilities to 
American privateers; but there seems to be no instance of a licensed American 
privateer actually being treated as a criminal. 139 In one instance British 
correspondence protested host state favors to an American naval officer as a 
breach of international obligations related to "piracy," but the context is 
political and the legal argument seems obscure. 140 

The use of the word "pirate" in what appears to have been a municipal 
criminal or administrative law context, but actually as a mere pejorative, and as a 
legal basis in either British municipal law or international law (certainly 
municipal law; international law to the extent the privateers licensed by the 
Continental Congress were conceived to be exercising belligerent rights) for 
holding political prisoners without calling them prisoners of war, was thus 
familiar to the statesmen of the United States from the moment of independence. 

The United States, as a new state in the international order, preferred not to 
use the legal word in this way but did use it as a political pejorative without legal 
implications. Among the earliest treaties of the United States under the 
Constitution of 1787, aside from the Jay Treaty and Pinckney 's Treaty with Great 
Britain and Spain respectively, 141 were the treaties with the "states" of the North 
African Mediterranean littoral, the Barbary states. 142 The word "pirate" was 
often used in the political rhetoric surrounding the so-called War with the 
Barbary Pirates, but in the actual conduct of hostilities, the normal laws of war 
and diplomatic and military intercourse were followed; the word seems to have 
reflected popular emotion only, not any legal classification. 143 

The American statute of 1790 144 contained a provision dealing with 
privateering done under color of a foreign commission. It was restricted in 
terms to American citizens taking such commissions, and thus rested its 



United States Law 155 

"standing" on the nationality of the accused "pirates." It separated 
conceptually the problem of commissions from the problems of "piracy" 
unauthorized by any public authority, thus for a full understanding of the 
American attitude towards depredations done by foreigners also under color 
of a foreign commission it is necessary to set it forth here: 

9. . . . That if any citizen shall commit any piracy or robbery aforesaid, or any act of 
hostility against the United States, or any citizen thereof, upon the high sea, under 
colour of any commission from any foreign prince, or state, or on pretence of authority 
from any person, such offender shall, notwithstanding the pretence of any such 
authority, be deemed, adjudged and taken to be a pirate, felon, and robber, and on being 
thereof convicted shall suffer death. 145 

This provision was left unchanged by the revisions of 1819 and 1820. The 
principle was expanded in 1847 during the war between the United States and 
Mexico of 1846-1848 through which the United States acquired California, 
New Mexico and Arizona, and ended Mexican claims to Texas. At that time 
the United States, as a matter of municipal law, extended the treatment as 
"pirates" even to foreigners acting under valid commissions by foreign 
governments if those commissions were inconsistent with the provisions of a 
treaty to which the United States is a party: 

That any subject or citizen of any foreign State, who shall be found and taken on the sea, 
making war upon the United States, or cruising against the vessels and property thereof, 
or the citizens of the same, contrary to the provisions of any treaty existing between the 
United States and the State of which such person is a citizen or subject, when by such 
treaty such acts of such persons are declared to be piracy, may be arraigned, tried, 
convicted, and punished before any circuit court of the United States ... in the same 
manner as other persons charged with piracy. 146 

The statute of 1790 and its continuations apply only to Americans and, after 
1847, some foreigners acting against the United States. Its provisions do not 
reflect any acknowledged underlying customary law. A British assertion that 
Americans serving on French privateers in 1794 were "pirates " was denied by 
the United States; 147 similarly, a French decree of 6 June 1803 classifying as a 
"pirate" vessel any privateer sailing against France two-thirds of whose crew 
were not subjects or citizens of a country at war with France, was considered 
by the United States to be inconsistent with the law of nations. 148 The question 
of Americans acting under foreign commissions against foreigners was 
answered as far as the United States was concerned by the Neutrality Act of 5 
June 1794 149 under which various unneutral acts by individuals within the 
territory of the United States were forbidden, including the fitting out of 
privateers to cruise against foreign powers. But only acts within the 
territorial jurisdiction of the United States were affected as it was apparently 
the American policy to regard mercenary activity by Americans, including 
privateering under foreign license (which could be very profitable indeed to 
the successful privateer), to be neither forbidden by any conception of the law 



156 The Law of Piracy 

of nations applicable to individuals nor any violation of American neutrality 
under international law as applicable between states. 150 

By 1854 it appears that even the British had accepted the American position 
that a regularly issued commission would remove the charge of "piracy" 
from nationals acting under third country commissions against yet other 
countries, and such a situation would not violate the neutrality of the 
privateers' own state if that state's territory or its own affirmative public 
policy were not involved. 151 Of course, municipal law or treaty could commit 
a state to a different policy. In addition to various policy arguments, such as 
the possibility that Great Britain might some day want to be able to employ 
American seamen in British privateers sailing against a third power, the 
Americans argued successfully that "By the law of nations, as expounded 
both in British and American courts, a commission to a privateer, regularly 
issued by a belligerent nation, protects both the captain and the crew from 
punishment as pirates." 152 

The Early American Experience. There is no American statute relating 
expressly to foreigners sailing under foreign commissions other than these. 
Thus, a legal gap was left with regard to foreigners sailing under commissions 
of foreign authorities who are not accepted by the political branches of the 
government of the United States as the representatives of foreign states. To 
the extent those foreign privateers act only against foreign shipping, not only 
would the United States lack standing to try them for "piracy" under any 
definition, but even if the jurisdictional problem were regarded as solved by 
calling them stateless under the approach taken in U.S. v. Klintock, 153 the lack 
otanimofurandi, an essential element of the crime of "robbery," would seem to 
take the privateers with doubtful license out of the conception of "piracy " as 
it evolved with regard to the "classical" application of Admiralty jurisdiction 
to hang foreigners acting abroad for violations of a municipal law relating to 
property rights on board ships of the prosecuting state. A different conception 
is involved relating less to the municipal law of "robbery " or "murder, " and 
more to the international law of war involving unrecognized political 
societies or groups forming themselves into governments but not yet in 
control of all the levers of the political society they claim to govern. The 
conception relates in the statutes to Americans engaging in "hostility" 
against the United States, or foreigners "making war" on the United States in 
disregard of treaty obligations of their own state. The uses of the word 
"piracy" in this very different context than the "robbery within the 
jurisdiction of the Admiral" definition, caused a confusion of thought that 
persists to today. 

Ironically, the first form in which the key questions arose was with regard 
to commissions issued by the United States itself in 1798 authorizing 
privateers to cruise against French shipping. 154 Under the Constitution of 
1787, the American Congress has the legal power in the United States "To 



United States Law 157 

declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water." 155 On 7 July 1798 the Congress 
legislated "That the United States are of right freed and exonerated from the 
stipulations of the treaties . . . heretofore concluded between the United 
States and France." 156 Two days later the Congress authorized the President 
to "instruct the commanders of the public armed vessels . . . employed in the 
service of the United States, to subdue, seize and take any armed French 
vessel" and to grant equivalent authority through "special commissions" to 
the owners of "private armed ships and vessels of the United States. " 157 Since 
there was no Declaration of War, the legal question was posed as to whether 
American commissioners acting under commission in the public interest, and 
not as licensed individuals in a "reprisal war," 158 could claim the rights of 
lawful combatants and whether Frenchmen captured by American privateers 
were to be treated as soldiers under the laws of war. In addition, the question 
arose as to whether an American taking a French commission or aiding the 
French was guilty of "treason" or of "piracy " under the "hostility" provision 
of section 9 of the Act of 1790. The Attorney General, Charles Lee, addressed 
the questions in an opinion sent to the Secretary of State, Timothy Pickering, 
on 21 August 1798: 

Sir: Having taken into consideration the acts o( the French republic relative to the 
United States, and the laws of Congress passed at the last session, it is my opinion that 
there exists not only an actual [sic] maritime war between France and the United States, 
but a maritime war authorized [sic] by both nations. Consequently, France is our enemy; 
and to aid, assist, and abet that nation in her maritime warfare, will be treason in a 
citizen or any other person within the United States not commissioned under France. 
But in a French subject, commissioned by France, acting openly according to his 
commission, such assistance will be hostility . . . [he] must be treated according to the 
laws of war. 159 

The Latin American Wars for Independence. It being more or less 
established, thus, that as far as the United States was concerned, the facts 
should determine the legal classifications pertinent to any particular 
situation, and that the political act of "recognition" through the formal 
attaching of classifications like "war" to a factual situation was a clarifying 
and at times determinative step, but that the failure to make a formal 
"declaration" was not determinative, the courts found themselves in some 
difficulty during the wars for independence of the Spanish colonies in the 
Americas. 

The Romp of Baltimore sailed under a commission from the revolutionary 
government of Buenos Ayres and, as the Santafecino, cruised successfully 
against Spanish shipping. The laws of maritime warfare were fully observed. 
Available records do not indicate why the terms of Pinckney's Treaty with 
Spain were not applied to make the American involvement in the voyage of 
the Romp equivalent to "piracy," 160 but when the crew was arrested on 1817 



158 The Law of Piracy 

and charged with "piracy" Chief Justice Marshall, sitting as a Circuit Judge 
in Virginia, found the major issue to be whether the commission from Buenos 
Ayres was significant legally in the absence of "recognition" by the political 
branches of the American government, and whether, if not, the "robberies" 
against Spain committed by the Romp's crew fell within section 8 of the 1790 
statutory definition of "piracy:" 

The commissions should go to the jury, merely as papers found on board the vessel. But 
on the main question . . . that a nation became independent from its declaration of 
independence, only as respects its own government. . . . That before it could be 
considered independent by the judiciary of foreign nations, it was necessary that its 
independence should be recognized by the executive authority of those nations. That as 
our executive had never recognized the independence of Buenos Ayres, it was not 
competent to the court to pronounce its independence. That, therefore . . . the seals 
attached to the commissions in question prove nothing. 161 

As to the law of "piracy" that would apply if the commissions were found 
by the jury not to endow the crew with an immunity from the law of "piracy " 
for the purposes of the case, Marshall reviewed section 8 of the Act of 1790 
and concluded in the light of a split of opinion between Justices Bushrod 
Washington and William Johnson that the law is "doubtful" as to whether to 
be "piracy" the depredation must be one that would be punishable by death if 
committed on land. 162 With this confusing instruction he sent the case to the 
jury, which took only ten minutes to return a verdict of not guilty. 

The legal questions were given a much more elaborate treatment about a 
year later in U.S. v. Palmer et al. As to the substance of the question as to 
whether the phrase "punishable by death" in the Act of 1790 section 8 
modified the word "piracy" as well as the phrase "any other offences," 
Johnson, in his dissent to U.S. v. Palmer, took the opportunity to reiterate his 
views conscientiously opposed to capital punishment. 163 He also reiterated his 
interpretation of the Constitution to withhold from the Congress the power 
to make that "piracy " which by the law of nations is not "piracy" in order to 
give jurisdiction to its own courts over such offenses 164 and went much further 
with regard to the question of commissions by unrecognized public 
authorities: 

When open war exists between a nation and its subjects, the subjects of the revolted 
country are no more liable to be punished as pirates, than the subjects who adhere to 
their allegiance. . . . The proof of a commission is not necessary to exempt an individual 
serving aboard a ship engaged in the war, because any ship of a belligerent may capture 
an enemy; and whether acting under a commission or not, is an immaterial question as to 
third persons: he must answer that to his own government. 165 

It is not clear whether the majority agreed with Johnson on these last 
points; Chief Justice Marshall exercised his usual genius for finding words 
that would satisfy all parties and resolve the case without actually taking a 
position. As noted above, the majority agreed with Marshall that acts by 



United States Law 159 

foreigners exclusively against foreign individuals or vessels "is not a piracy 
within the true intent and meaning of the act" of 1790 section 8. 166 

But what of Amercan defendants and foreigners who take American 
property at sea under a doubtful foreign commission? As to these, Marshall 
wrote: 

[I]f the government [of the United States] remains neutral, and recognizes the existence 
of a civil war, its courts cannot consider as criminal those acts of hostility which war 
authorizes, and which the new government may direct against its enemy. . . . This would 
transcend the limits prescribed to the judicial department. 167 

This reiteration of the position taken so futilely a few months before in 
U.S. v. Hutchings at the Circuit Court level, was modified and expanded 
somewhat when Marshall drafted the "per curiam" Certificate to take 
account of Johnson's views and conclude the case by giving guidance for the 
future. After holding that acts by foreigners exclusively against other 
foreigners are not "piracy" within the sense of section 8 of the Act of 1790 
(not mentioning whether "piracy" at general international law), Marshall 
wrote for the Court: 

[W]hen a civil war rages in a foreign nation, one part of which separates itself from the 
old established government, and erects itself into a distinct government, the courts of 
the union must view such newly constituted government as it is viewed by the legislative 
and executive departments of the government of the United States. If the government of 
the union remains neutral, but recognizes the existence of a civil war, the courts of the 
union cannot consider as criminal those acts of hostility, which war authorizes, and 
which the new government directs against its enemy. 168 

As in U.S. v. Hutchings, Marshall (carrying the whole Court with him) 
concluded that the seal on a purported commission may be proved by such 
evidence as the circumstances permit even if there is no clear "recognition" 
of the seal-granting authority by the political branches of government, and if 
it cannot be proved, then the defendant may nonetheless otherwise prove 
himself to be in government service. 

This opinion did two important things from the point of view of this part of 
the analysis: (1) It impliedly applied the municipal law "robbery" conception 
to the international law concept of "piracy" by allowing that any 
commission, or even mere government service without a commission, could 
negative the animus furandi necessary for a "piracy" conviction at American 
law; and (2) while repeating the subservience of the judicial branch to the 
other two branches of the American Federal government, it allowedjuries to 
construe the silence of those other branches as consent to whatever the jury 
might find to be the legal classifications for the purposes of the particular case 
best flowing from the facts introduced in evidence before the court. Thus, 
while allowing the political departments of government to "recognize" as 
facts for the entire government a labeling system that might bear no 
relationship to the labels that a jury objectively viewing the evidence might 



160 The Law of Piracy 

find, the legal system was not to be crippled by the inability of the political 
officers of government to make up their minds as to the labels that would do 
most to advance American policy interests. They could continue to be as 
positivist as they pleased, but the law using the traditional tools of naturalism, 
reason and fundamental principle derived from conscience and experience, 
could act when policy did not intervene. The result of this approach was to 
separate the law of "piracy" from the law of war, which was conceived to 
apply to all public contentions of arms whether or not declared and whether 
or not all parties were "recognized" as states or governments. 169 

In the light of the history of the American revolution and the policy 
followed during the undeclared war with France, this was hardly 
earthshaking, but it caused considerable confusion to the political arms, 
which felt they might be losing control of reality by permitting the judiciary 
to affix legal labels on the basis of evidence instead of on the basis of policy as 
examined by the political representatives of the Union. On 6 November 1818, 
shortly after the decision in U.S. v. Palmer et al. was announced, the Attorney 
General, William Wirt, responded to a request for legal guidance from Elias 
Glenn, the Federal District Attorney for Baltimore, in a case involving 
American privateers sailing under licenses issued by the organization headed 
by Jose Gervasio Artigas, the leader of the Uruguayan independence 
movement involved in struggles against the governments of Buenos Ayres 
and Portugal (which was still sovereign in Brazil). The easy answer might 
have been to rest not on the law of "piracy, " but on the American Neutrality 
Act of 1794 forbidding American nationals taking foreign colors while in the 
United States. 170 But, this statute had only a very narrow territorial 
application, did not apply to American nationals abroad, and was aimed at 
preserving the neutrality of the United States by forbidding American 
territory to be used for foreign enlistments or fitting out foreign warships. The 
only reference to "piracy" in the act is in its section 9: "[NJothing in the 
foregoing act shall be construed to prevent the prosecution or punishment of 
treason, or any piracy defined by a treaty or other law of the United 
States." 171 The strictly territorial applicability of this statute had been 
assumed in 1796 by Attorney General Charles Lee, who had felt it necessary to 
explain why it was necessary to preserve the neutrality of the United States 
by controlling even the actions of foreign seamen; his language, while so 
general that it might be read to apply to foreign seamen abroad, cannot have 
been intended to apply so broadly because the neutrality of the United States 
cannot have been conceived to have been affected by that, and it is neutrality 
that is the subject: 

Mariners may be said to be citizens of the world; and it is usual for them, of all countries, 
to serve on board of any merchant ship that will take them onto pay. ... In the acts of 
Congress passed for punishment of crimes against the United States, it is observable that 
mariners [sic] are forbidden to serve on a foreign ship of war, letter of marque, or 



United States Law 161 

privateer, but are left at liberty to serve on board a vessel merely engaged in 



commerce. 



172 



To Wirt, the enlistment under Artigas's licenses was illegal under the act of 
1794, but if not, then it must have been "piracy " under the act of 1790, section 
9. Since it is not clear that the place of enlistment was within the territory of 
the United States, it is not clear how the 1794 act was conceived to apply; and 
since it is not clear that any victim of the privateers was American, it is hard 
to see how section 9 of the act of 1790 could apply. But Wirt seems to have 
been obsessed with his reading of U.S. v. Palmer et al. and U.S. v. Hutchings: 

If the prisoners fail in showing that our government had admitted the existence of a civil 
war between Artigas and Portugal, then the principles laid down in Palmer's case . . . can 
have no application. 173 

In that case, wrote Wirt, Marshall's position in the Romp case will result in a 
conviction for "piracy." In case that argument seemed unconvincing, Wirt 
found another by citing Vattel for the proposition that "the citizens of the 
United States cannot mingle in that war, on this hypothesis, without being 
guilty of piracy." But the citation given by Wirt does not support his 
conclusion, since it forbids only foreign recruitment, not enlistment. 174 

Wirt raised also the possibility that if all else failed the American 
adventurers might be considered "pirates" under an unspecified Act of 1817. 
The only Act that might fit his description provides: 

That if any person shall, within the limits of the United States, fit out and arm, . . . any 
such [sic; there is no prior referent in the statute to justify the "such"] ship or vessel, with 
intent that such ship or vessel shall be employed in the service of any foreign prince or 
state, or any colony, district or people, to cruise or commit hostilities . . . against the 
subjects, citizens, or property, of any prince or state, or of any colony, district or people 
with whom the United States are at peace, every such person so offending shall, upon 
conviction, be adjudged guilty of a high misdemeanor. 175 

He seems to have overlooked the limiting language "within the limits of 
the United States." 176 This series of confusions and citations to inapplicable 
statutes and writings seems good evidence of the desire of the Administration 
of President James Monroe to find a basis in the law for controlling the 
adventures of Americans in the free-wheeling revolutionary days of the early 
19th century Western Hemisphere without additional legislation. Indeed, it 
seems likely that stronger legislation to limit North Americans' adventures in 
Latin America could not have been passed through the Congress, in which 
representatives from the less sedate members of American society had a 
stronger voice than in the Virginia lawyer's appointed executive branch. 
Marshall's ambiguities were not sufficient. The defendants were acquitted 
without the jury leaving their seats, much to the fury of the Secretary of 
State, John Quincy Adams, who felt the acquittal showed a lack of character 
and ability in all those involved in the prosecution, including William Wirt, 
and the judges in the case; William Pinckney, the defense counsel, was 



162 The Law of Piracy 

regarded by Chief Justice Marshall and Justice Joseph Story as the greatest 
advocate to appear before them. 177 

Examples of the practical difficulties of administering the terms of section 
8 of the Act of 1790 were given above, 178 and the ambiguities were 
substantially increased by the possibility that a foreign commission might 
authorize the depredations observed or suspected by American licensees 
seeking to capture "pirate" vessels. As early as 1813, Bushrod Washington 
had tried unsuccessfully to use section 8 of the Act 179 to limit the excessive zeal 
of foreign privateers. In U.S. v. Jones 180 a jury in Philadelphia had before it a 
defendant from a vessel which had despoiled a Portuguese ship although, 
according to Washington, in the political struggle giving rise to Jones's 
foreign commission Portugal was a "neutral" as far as the United States was 
concerned. The facts are not entirely clear, but the defendant appears to have 
been an American, and Washington sought to have him bound by American 
neutrality not to participate in a struggle among foreign public authorities. 
No act of the Congress squarely touched the situation and Washington was in 
the same dilemma Wirt would try to bluster his way out of in 1818. 
Washington cited Jenkins, Molloy, Wooddeson and the Kidd case, 181 "which 
latter case, " he wrote, "though decided at Common Law, is clearly bottomed 
upon the principles of the maritime law of nations, with which the Common 
Law in this respect agrees. " 182 The fact of the defendant's commission having 
authorized depredations against Portuguese vessels Washington instructed 
the jury to be irrelevant if the defendant "knows, or ought to know, the 
orders to be illegal." The act of "piracy" under the Act was apparently not 
necessarily either murder or robbery, but included any other act which would 
have been punishable by death if committed on land. Washington seems to 
have felt that this language of the Act of 1790 did not expand the international 
law of "piracy" but codified it. 183 The verdict was for acquittal, apparently 
on the basis of a possible mistaken identity between Jones and another 
defendant named Hancock, and some serious question about the credibility of 
some witnesses, 184 so possible legal errors in the charge were never appealed 
to higher courts. 

Evolution of the Labels. Among the "piracy" cases dealt with at the Supreme 
Court level immediately after U.S. v. Smith in 1820 185 was U.S. v. Griffen and 
Brailsford, in which the charge was applied to an American fitting out a vessel in 
an American port to cruise under a foreign commission against a foreign power at 
peace with the United States. The facts are not fully set out, but the Supreme 
Court's decision was that even if the "piracy" laws did not apply, the Neutrality 
laws of the United States did, 186 and the defendant concerned was "not protected 
by a commission from a belligerent from punishment for any offence committed 
by him against vessels of the United States." 187 

Another was U.S. v. Holmes, 188 in which the Supreme Court avoided the 
problem of having the judicial branch via a jury decision "recognize" the legal 



United States Law 163 

power of an unrecognized authority (Buenos Ayres again) to issue valid 
commissions in disregard of the silence of the political branches of 
government by applying the rule of U.S. v. Klintock. 189 Apparently it was 
hoped that a jury would find that "the vessel . . . had, at the time of the 
commission [of the offense], no real national character but was possessed and 
held by pirates, or by persons not lawfully sailing under the flag, or entitled to 
the protection of any government whatsoever." 190 

It seems likely that the Supreme Court's difficulties dealing with these 
cases reflected a deep jurisprudential split between Story and Washington, 
the "naturalists," taking an expansive view of American jurisdiction to apply 
an international law of "piracy" to foreigners who interfered with foreign 
shipping in disregard of the legal order's normal demand for some "standing" 
in the state whose judicial arm had the accused "pirates" before it, and the 
"positivists," Johnson and Marshall, who insisted that, regardless of judges' 
perceptions of abstract "justice, " "reason" or the presumed needs of society, 
the jurisdiction of the American courts was restricted to such cases as the 
Congress by legislation had given to it, and who interpreted the intention of 
the Congress narrowly. The compromise as of 1820 was to allow jurisdiction 
in those cases in which American "standing" could be supported in the usual 
way plus those in which no other state in the international legal order could 
assert a greater "standing" or legal interest. The limits of this approach were 
reached when the defendants derived their authority for committing 
depredations at sea from commissions issued by unrecognized foreign 
officials; the "naturalists" wanted to consider those cases as within American 
judicial purview, the "positivists" did not. 

Wheaton in 1836 attempted to summarize the American view and ended 
with the same split between broad assertion of jurisdiction and narrow 
citation to practice that was the result of the jurisprudential division within 
the Supreme Court. He wrote: 

Pirates being the common enemies of all mankind, and all nations having an equal 
interest in their apprehension and punishment, they may be lawfully captured on the 
high seas by armed vessels o{ any particular state, and brought within its territorial 
jurisdiction for trial in its tribunals. 191 

This proposition, however, must be confined to piracy as defined by the law of nations, 
and cannot be extended to offences which are made piracy by municipal legislation. . . . 
The crimes of murder and robbery, committed by foreigners on board of a foreign 
vessel, on the high seas, are not justiciable in the tribunals of another country than that to 
which the vessel belongs; but if committed on board of a vessel not at the time belonging, 
in fact as well as right, to any foreign power or its subjects, but in possession of a crew 
acting in defiance of all laws, and acknowledging obedience to no flag whatsoever, these 
crimes may be punished as piracy under the law of nations in the courts of any nation 
having custody of the offenders. 192 

The interplay between the American municipal law and the international 
law of "piracy" as it might apply to political actors with commissions issued 
by unrecognized governments at this period was illuminated in a case decided 



164 The Law of Piracy 

by a unanimous Supreme Court, opinion by Justice Johnson, in 1821. The Bello 
Corrunes was a Spanish ship, captured in 1818 by an American sailing under 
commission issued by the authorities of Buenos Ayres in a ship that had been 
fitted out in the United States in violation of the Neutrality Act of 1794. 193 It ran 
aground on Block Island, at the Eastern end of Long Island Sound, as a group of 
its original crew seized control back from the American licensee of Buenos 
Ayres. The claimants in an Admiralty proceeding thus were the original Spanish 
owners, on the argument that the capture was "piracy " because the authorities 
in Buenos Ayres had no legal power to issue a commission; the American 
licensee, on the basis of his capture of the vessel; and the group of original 
crewmembers, who claimed compensation as salvors for the original owners by 
virtue of their recapture of the ship from "pirates" just before she ran aground. 
The learned counsel before the Supreme Court included Daniel Webster and 
Henry Wheaton for the Spanish owners and the "salvors" respectively, both 
arguing the original seizure to have been "piracy" under article 14 of Pinckney 's 
Treaty. 194 The decision was for the Spanish owners not on the ground of the 
intervening capture having been "piracy," but on the ground of the American 
captor having violated article 14 of the Treaty and the implementing statute of 
14 June 1797, 195 and the salvors not having shown that they truly intended to 
return the vessel to its Spanish owners rather than keep it for themselves. 196 
Johnson indicated that the Treaty deeming to be "piracy" any American 
privateering against Spain under license from any "Prince or State" with which 
Spain shall be at war was problematical because Spain refused to consider its 
troubles with Buenos Ayres to amount to "war," or Buenos Ayres to be the 
government of a "state. " But, he said, whatever the problems in punishing these 
acts as "piracy," they are clearly prohibited "and intended to be stamped with 
the character of piracy . " 197 

Meantime, as to the relationship between reality and legal labels, in the 
1820 case of thejosefa Segunda m the Supreme Court reiterated in even stronger 
terms the approach taken by Marshall in U.S. v. Palmer et al. The Josefa 
Segunda, suspected of preparing to violate American laws regarding the slave 
trade, was taken into an American port. Rival claimants for the vessel, in 
addition to its captors, were its original Spanish owners and its immediate 
possessors, who were the prize crew put aboard by a Venezuelan privateer. 
To defeat the claim of these last, an argument was made that the Venezuelan 
capturing vessel, the General Arismendi, was a "pirate" because the licensing 
Venezuelan authorities had not been "recognized" by either Spain or the 
United States as a government; that there was no "recognized" state of war 
between Spain and any local authorities in Venezuela, and that even if all of 
this were not so, the Josefa Segunda had never been formally taken before a 
Venezuelan or any other prize court and therefore the legal Spanish title had 
never been divested. Justice Henry Livingston for the Supreme Court brushed 
aside all these formal legal arguments: 



United States Law 165 

Although not acknowledged by our government as an independent nation, it is well 
known that open war exists between them [the Venezuelan local claimants to authority] 
and his Catholic Majesty, in which the United States maintains strict neutrality. In this 
state of things, this Court cannot but respect the belligerent rights of both parties; and 
does not treat as pirates, the cruizers of either, so long as they act under, and within the 
scope of their respective commissions. 199 

The lack of actual condemnation before a prize court was considered 
irrelevant because "a condemnation in a Prize Court of Venezuela was 
inevitable." 200 This was judicial naturalism with a vengeance. "War" was 
considered a legally significant "fact," not a legal status. American 
"neutrality" appears also to have been treated as a "fact" despite the 
appearance of status language. The reference to both the facts of war and of 
American neutrality is immediately followed with a reference to "this state 
of things" compelling legal results, the respect for the "belligerent rights of 
both parties." If this was not a judicial "recognition" of the status of the 
Venezuelan authorities as a "party" to a legal "war," it is hard to see what 
would have been. It differs from a declaration by the Executive branch of the 
American government only in that it is legally valid for the particular case 
alone, not necessarily for other purposes or other cases. The case also shows 
the decreasing importance of the forms of the law, the Prize court 
proceedings, to the "naturalist" jurist. Until this time, the American capture 
of the Josefa Segunda from a privateer prior to the legal title in the vessel and its 
cargo being changed by some national Prize court would have had the same 
legal result as a rescue from "pirates": Return of the vessel and cargo to its 
legal owners and payment by them of "salvage" to the recaptors. Instead, the 
result in the Josef a Segunda in practical terms was the defeat of Spanish title (by 
presuming the result of a Venezuelan prize court — and presuming sufficient 
legal status in the authorities of Venezuela to hold one) and the defeat of the 
title claimed by the General Arismendi's owners and company by virtue of the 
violation of the American anti-slave-trade laws in the territorial waters of 
the United States, and thus the full value of the vessel and its cargo to the 
American captors and government under those laws. Presumably this is the 
same result the political branches of the American government would have 
wanted to reach by the discretionary application of legal labels in a positivist 
mode, and, by restricting the labels to the particular case, avoided 
international political complications that handling by the executive branch 
alone in diplomatic correspondence and administrative action would have 
entailed. And yet, it seems apparent that to a large degree the Supreme Court 
was exercising a political discretion, attaching labels not, perhaps, for strictly 
policy reasons, as a self-conscious executive might have done, but finding 
colorable reasons in a naturalist mode for attaching the labels most likely to be 
welcomed by the administration of President Madison. Presumably they are 
the same reasons that a positivist would have chosen in diplomatic 
correspondence with Spain, although in that case tempered by apprehensions 



166 The Law of Piracy 

of reciprocal treatment by Spanish authorities with regard to American 
vessels captured by America's enemies and not yet formally condemned, and 
perhaps also by concern lest the Spanish authorities for their own policy 
reasons "recognize" the international legal capacity of various American 
Indian tribes or other groups which it was in the United States political 
interest to suppress without reference to the rules of international law. 

The Supreme Court itself did not maintain this exaggerated role in the 
discretionary business of attaching legal labels relating to international 
affairs. Once the political branches had "recognized" the war of indepen- 
dence between Spain and its American colonies, and proclaimed United 
States neutrality, the Court could skip back to its more comfortable role as a 
judicial branch of government concerned with applying American municipal 
law and only such international law as American municipal law required it to 
apply. The case marking this retreat was the Santissima Trinidad and the St. 
Andre. 201 Justice Story delivered the Court's unanimous opinion. The case 
involved an American-built ship, the Independencia sold to James (Diego?) 
Chaytor, of originally American, now nuclear, nationality, who held a 
commission from the authorities of Buenos Ayres. Story wrote: 

Buenos Ayres has not yet been acknowledged as a sovereign independent government by 
the executive or legislature of the United States and, therefore, is not entitled to have 
her ships of war recognized by our courts as national ships. We have, in former cases, 
had occasion to express our opinion on this point. The government of the United States 
has recognized the existence of a civil war between Spain and her colonies, and has 
avowed a determination to remain neutral between the parties, and to allow to each the 
same rights of . . . intercourse. Each party is, therefore, deemed by us a belligerent 
nation, having, so far as concerns us, the sovereign rights of war, and entitled to be 
respected in the exercise of those rights. 202 

But the fitting out of the Independencia and a companion vessel in the United 
States was a violation of the American Neutrality Act even if not a violation 
of article 14 of Pinckney's Treaty 203 and Story argued that the American 
Neutrality Act was but one country's legislation expressing the underlying 
principles of all civilized countries (or, at least, all countries participating in 
the international legal order as conceived by Story) and, therefore, was 
simply part of the "law of nations" as conceived by Blackstone. Thus, while 
rejecting the characterization of Chaytor as a "pirate" under article 14 o{ 
Pinckney's Treaty, and, by virtue of its public character rejecting the 
characterization of the Independencia as a "pirate" vessel, he held that the 
wrongful fitting out of the vessel in the United States "is a violation of the law 
of nations, as well as of our own municipal laws" and that violation "infects 
the captures subsequently made with the character of torts, and . . . requires 
restitution." 204 

As to the property rights adjudicated by a foreign prize court, Story and the 
Supreme Court retreated considerably from the glib dismissal of the foreign 
legal process evident in the presumption of condemnation and the giving of 



United States Law 167 

current effect to the merely anticipated legal action in thejosefa Segunda. The 
Santissima Trinidadhad been captured by the Independencia and, with the consent 
of all parties in the United States, had been sold there with the money 
received replacing the vessel as the object of this Admiralty in rem proceeding. 
During the pendency of the proceeding a Prize court in Buenos Ayres had in 
fact condemned the vessel in absentia. The Supreme Court did not object to the 
action of the Buenos Ayres court, ruling rather surprisingly that a belligerent 
Prize court could legally act when a prize is physically elsewhere, in a neutral 
port. But Story found two reasons why that Prize court action was 
ineffective: (1) the vessel, having already been submitted to an Admiralty 
court, it was no longer in the hands of the captor, so the res essential to an in rem 
action was missing, (2) the property was already in the hands of an American 
court, and the supervening action of a foreign court cannot oust the American 
court of its jurisdiction: "It would be an attempt to exercise a sovereign 
authority over the court having possession of the thing, and take from the 
nation the right of vindicating its own justice and neutrality." 205 The first 
reason seems inconsistent with the reasoning of the court in thejosefa Segunda, 
where the act of the foreign prize court was anticipated and had never 
occurred even during the American proceedings. The second goes to the 
question of jurisdiction, not substance, and it is hard to see why an otherwise 
valid legal act should be denied legal effect as a matter of national honor in an 
Admiralty proceeding whose primary object is to evaluate conflicting claims 
to property rights resting on foreign laws. Title to the vessel was restored to 
its original Spanish owners, thus, although they did not in fact get their ship 
back, they got the money that had replaced it in the action. 

It seems clear that by taking a "naturalist" line, labeling "belligerency," 
and thus subject to the laws of war as they apply between states, the fighting 
between a group seeking governmental authority and a group losing control 
over the territory and population its constitution presumed that it ruled, on 
the basis of "objective" facts rather than policy arguments, the Supreme 
Court had made the label "piracy" irrelevant to questions arising out of the 
acts of the licensees of unrecognized authorities. When the policy-making 
branches of the American government agreed on the basis of its own 
positivist, policy, arguments there was no difficulty. There is no case known 
to have arisen over a conflict of labels between the courts and the policy- 
making branches of the American government. 

This evolution was probably helped by an equivalent evolution in England, 
where Sir William Scott in 1819 had come to similar results in similar (but 
very complex) circumstances. A British ship, the Hercules was commissioned 
by Buenos Ayres to cruise against Spanish shipping. It had sold various 
captured vessels without first submitting them to Prize court hearings in 
Buenos Ayres. It was arrested by a British naval vessel for a claimed breach of 
the revenue laws of Barbados and taken to the British Admiralty court in 



168 The Law of Piracy 

Antigua for adjudication among the captor seeking his share under a British 
statute regarding naval captures to enforce revenue laws, the British owner 
of the cargo, the British captain of the vessel for the vessel itself, the Spanish 
Ambassador for the Spanish crown and owners of vessels and cargo plundered 
by the Hercules, and a local attorney for the particular Spanish owners of 
identifiable cargo plundered from a particular vessel. In the Antigua court, 
the Navy captain won. The case was taken to England on appeal. Sir William 
Scott found the Antigua Admiralty court had lacked jurisdiction under 
British law to hear a case involving a breach of Barbados revenue laws, and 
held for the British owner of the vessel and the bulk of its cargo. Immediately, 
the Spanish Ambassador and the other Spanish claimants appealed again 
claiming the Hercules to have been a "pirate" vessel when it captured their 
property on the ground that the authorities in Buenos Ayres had no legal 
power to issue a valid commission. 

Scott's solution was to eliminate the law of "piracy" from the case and 
restrict that law to the "criminal law" context which was only part of its 
origin in English municipal law. The international law aspects of the case he 
held to be questions of property law only, on which he proposed to hold 
further hearings. As a result of this decision, the report notes, "Some further 
proceedings were had . . ., but owing to a compromise which took place 
between the several parties, it did not again come on for discussion." 206 In 
reaching this result, Scott had some pertinent things to say about the law of 
"piracy" as conceived in England at this time: 

It is to be observed, likewise, that piracy has long ceased to be practiced in any 
considerable extent. There is said to be a fashion in crimes; and piracy, at least in its 
simple and original form, is no longer in vogue. Time was when the spirit of 
buccaneering approached in some degree to the spirit of chivalry in point of adventure; 
and the practice of it, particularly with respect to the commerce and navigation and 
coasts of the Spanish American colonies, was thought to reflect no dishonour upon 
distinguished Englishmen who engaged in it. . . . But whether the numerous fleets, 
which in later times have been maintained by the European States, or the prevalence of 
juster notions, and gentler manners, and commercial habits, have cleared the ocean of 
this nuisance, the fact is certain, that the records of our own criminal Courts shew that 
piracy is become a crime of rare occurrence, hardly visible for above a century past, but 
in the solitary instances of a few obscure individuals. Pirates, in the ancient meaning of 
the term, are literally rati nantes on the high seas. . . . Now, piracy is certainly not 
considered as a felony at the common law . . . [I] will hear the case for restitution. 207 

Thus, by relegating "piracy" to the strict criminal law context and 
denying Common Law jurisdiction (by virtue of the Act of 1536, which Sir 
William Scott regarded as excluding the Common Law courts and the normal 
Admiralty courts from the cases of alleged "piracy" as crime), and viewing 
the Admiralty courts as strict property courts in the same way as had been 
done by Sir Julius Caesar some 150 years earlier, 208 the legal efficacy of the 
word even to justify the preservation of property rights of the victims of 



United States Law 169 

illegal captures at sea was eliminated. His reasoning does not depend on the 
lack of animo furandi, but on lack of jurisdiction and the fundamental 
irrelevancy of the concept to the kind of case resulting from captures under 
licenses issued by doubtful public authorities. 

A similar approach was taken in 1826 by the American Supreme Court, 
again unanimously and again under an opinion written by Justice Story, when 
an American naval claimant sought to justify the taking of a Portuguese 
merchant ship on the ground of its "piratical" behavior. While Story was 
much less certain than Scott of the total obsolescence of the law of "piracy," 
he restricted the notion in the case of a foreign vessel, flying a flag to which it 
is authorized, to when that vessel was engaged in "a private unauthorized 
war. " Under this opinion, the Supreme Court decreed the return of the vessel 
to its Portuguese owners, but released the American Navy captain from 
liability for damages resulting from his wrongful, but reasonable, taking of 
the vessel. 209 

The same result followed a year later with an accompanying rationale 
apparently even more strongly influenced by Scott's reasoning in the Hercules. 
The Palmyra, sailing under a Spanish commission, had been taken on the high 
seas by an American warship in 1822 after minor resistance. The Palmyra's 
commission had been issued to a different vessel under a different commander, 
and had expired; it had then been renewed and issued to the Palmyra by a 
minor Spanish official of undocumented authority. Acting under that 
commission, the Palmyra had plundered two French vessels, the Coquette and 
the Jeune Eugenie. The American captor, Lieutenant Gregory, brought the 
Palmyra in for adjudication, and the owners of the Palmyra sued him for 
damages, claiming American interference with her voyage was unjustified 
and the case, since it did not involve any American legal interest, beyond the 
jurisdiction of American courts. Justice Story delivered the Supreme Court's 
opinion. As to substance, the court held that the burden on the captor to prove 
the Palmyra was a "pirate" vessel had not been borne, thus the acquittal of the 
vessel and its crew was confirmed; mere irregularity in the ship's papers and 
her excessive action against the two French vessels did not constitute 
"piracy." 210 But the statute under which Lieutenant Gregory acted 
authorized the President to instruct the commanders of American public 
vessels to take only vessels with armed crews "which shall have attempted or 
committed any piratical aggression, search, restraint, depredation or 
seizure." 211 This use of "piratical" as an adjective caused obvious problems, 
and Story pointed out that the case was not a criminal case, but an in rem 
Admiralty proceeding in which the actual charge of "piracy" was not being 
determined. The question thus resolved itself not to an issue of the law of 
nations or the precise definition of "piracy, " but to a narrower question of the 
intent of the Congress expressed in the statute. As to the international law, 
Story concluded that "whatever may be the irregularities, . . . such 



170 The Law of Piracy 

commission . . . ought, in the courts of neutral nations, to be held a complete 
protection against the imputation of general piracy." As to the in rem 
proceeding, he went on, ' [TJaking the circumstances together, the Court 
thinks that they presented, prima facie, a case of piratical aggression . . . within 
the acts of Congress, open to explanation indeed . . . ; Lieutenant Gregory, 
then, was justifiable in sending her in for adjudication, and has been guilty of 
no wrong calling for compensation/' 212 

Implicit in this holding was an extension of American jurisdiction to 
foreign vessels suspected of "robbery at sea" against other foreign vessels 
with no clear American interest in the transaction. Story's conception of 
universal criminal law jurisdiction over "pirates" seems to have been adopted 
by the Court as a whole. But again, the case was not presented squarely; it was 
not in fact a criminal prosecution and the Palmyra was restored to its owners 
despite the doubtful commission and the firmly stated view of the Court that 
"Her [the Palmyra's] exercise of the right of search on these [French] vessels 
was irregular and unjustifiable. " 213 Thus, the case can be interpreted to stand 
for something very close to the opposite of what Story wanted. The assertion 
of universal American police jurisdiction was not necessary for the result and 
stands as mere dicta; and the need for some clear public authority to license 
interference with navigation on the high sea was reduced to a mere need for 
the semblance of such authority which a "neutral nation" could not properly 
question. A relationship of belligerency between the flag state of the 
"privateer" (or "pirate") and the victim would come close to making moot 
the question of licenses. Story preserved the possibility that a "privateer" 
might become a "pirate" even if acting only against vessels of an authority at 
war with the authority issuing the commission, but the likelihood seems 
remote of ever being able to present a convincing case on the point, and none 
has been found. 

On this last point, the trend of the law seems to have been against Story and 
his attempt to extend the Supreme Court's assertions beyond the cases before 
it to cover general policing jurisdiction. In 1829 a prosecution of an individual 
of possible American nationality for "piracy against a French vessel on the 
high seas" (apparently all the acts took place within a single vessel) resulted in 
an acquittal "for want of jurisdiction" 214 under a charge that made the 
nationality of the defendant the key to jurisdiction under the acts of 1790, 
section 8, and 1820, section 3. Dallas, the prosecuting attorney for the United 
States, agreed that there was no case against the defendant under a charge of 
"piracy by the law of nations" because he was "indicted as a citizen of the 
United States, for violating the laws of the United States." The District 
Judge, Hopkinson, interpreted U.S. v. Palmer et al. to exclude from the scope 
of the 1790 Act a crime by a foreigner on board a foreign vessel, and 
interpreted U.S. v. Klintock to be consistent with that approach. The 
extension of the statute to cover vessels of no flag in U.S. v. Holmes he 



United States Law 171 

construed as limited to that; it did not extend the act to cover vessels of a 
known foreign flag. While the act of 1819 extended American jurisdiction to 
cases of "piracy" at international law, Hopkinson argued the Congress "had 
felt the force of the reasoning in Palmer's case; and may have doubted the 
policy or propriety of extending their penal law beyond their own vessels, 
leaving it to other nations to do the same with theirs." 215 He construed the 
later acts of Congress to conform to this view, and concluded that acts wholly 
within a foreign vessel "sailing under the flag of a foreign state, whose 
authority is acknowledged, is not piracy within the true intent and meaning of 
that [1820] act, and this court hath no cognizance to hear, try, determine and 
punish the same." 216 

Story had a final chance to try to establish the jurisdiction of United States 
courts over foreigners acting solely against foreign shipping, and to expand 
the definition of "piracy" to include more than robbery and murder across 
jurisdictional lines at sea in 1844. The Brig Malek Adhelbound on a commercial 
voyage from New York to California apparently attacked at least five other 
vessels on the high sea. Two of the victims were British-owned and one 
Portuguese (two were American-owned), but actual depredation and plunder 
was alleged only with regard to the Portuguese vessel; the others were 
apparently fired on only to sink them or harass them. Although the Malek 
Adhel was in fact American-owned, and thus there need have been no doubt 
regarding jurisdiction, Story construed the Act of 1819 as extended in 1820, 
second section, which authorizes American warships to seize "any vessel or 
boat . . . which shall have committed any piratical aggression . . . upon any 
other vessel" to apply without regard to any issues of standing: 

The policy as well as the words of the act equally extend to all armed vessels which 
commit the unlawful acts specified therein. 217 

As to the substance of the offense, Story interpreted the adjective "piratical" 
to include: 

The class of offences which pirates are in the habit of perpetrating, whether they do it 
for purposes of plunder, or for purposes of hatred, revenge, or wanton abuse of 
power. ... If he willfully sinks or destroys an innocent merchant ship, without any 
other object than to gratify his lawless appetite for mischief, it is just as much a piratical 
aggression, in the sense of the law of nations, and of the act of Congress, as if he did it 
solely and exclusively for the sake of plunder, lucri causa. 21 * 

Of course, the case did not involve "piracy" as such; it was not a criminal 
proceeding but an in rem proceeding. The lower court decree condemning the 
vessel as a punishment authorized by the statute, but releasing its cargo to the 
innocent owners, was affirmed. The funds received from sale of the vessel 
were used to indemnify the captors for their costs and charges; it appears that 
the victims suffered no provable losses other than to their dignity. 219 

The question of the validity of a commission issued by an unrecognized 
authority arose again most poignantly when Texas declared its independence 



172 The Law of Piracy 

of Mexico. In 1836 an armed schooner, the Invincible, captured an American 
brig, Pocket, bound for a Mexican port within the territory claimed by Texas. 
The President (Andrew Jackson) asked Attorney General Benjamin Butler 
whether the Invincible was a "pirate. " His answer was that under Section 9 of 
the Act of 1790 Americans involved in the action of the Invincible would be 
considered "pirates" by the law of the United States 220 (whatever their 
situation under international law), but that the situation was different for 
Texans (or rebelling Mexicans, as they legally were): 

Where a civil war breaks out in a foreign nation, and part of such nation erect a distinct 
and separate government, and the United States, though they do not acknowledge the 
independence of the new government, do yet recognize the existence of a civil war, our 
courts have uniformly regarded each party as a belligerent nation, in regard to acts done 
jure belli. Such may be unlawful, when measured by the laws of nations or by treaty 
stipulations; the individuals concerned in them may be treated as trespassers, and the 
nation to which they belong may be held responsible by the United States; but the parties 
concerned are not treated as pirates. 221 

This approach, relieving the privateers of the unrecognized government of 
Texas of the legal results of "piracy" on the basis of their deriving their 
authority to act from the laws of war and their adherence to a public 
organization engaged in that belligerency, was asserted to be valid despite the 
fact that the interference with American shipping "would seem to be an 
infraction of the treaty made in 1831 between the United States and the 
United Mexican States, (of which Texas was then a constitutent [sic] part), 
and there may be other reasons for doubting its legality as an act done in the 
right of war." 222 The point was that once the relations between Mexico and 
the Texas authorities were considered "belligerent," the law of war applied 
and "piracy" was incompatible with belligerency as long as the "pirates" 
were acting, not necessarily in full conformity with that law, but within that 
system of law. They might be "war criminals," but not "pirates." That the 
law of war applied between Mexico and the authorities of Texas was 
determined by Attorney General Butler as a matter of strict positivist logic: 

The existence of a civil war between the people of Texas and the authorities and the 
people of the other Mexican States, was recognized by the President of the United States 
at an early day in the month of November last. Official notice of this fact, and of the 
President's intention to preserve the neutrality of the United States, was soon after 
given to the Mexican government. 223 

Attorney General Butler thus did not examine whether the facts viewed 
objectively justified this American classification of relations between Texas 
and the rest of Mexico, but accepted the classifications given by the policy 
officers of a political branch, the executive, as the basis for his legal analysis. 
This approach, relying on policy officers for the basic classification system, 
and then interpreting the law of war to exclude "piracy" even for acts done in 
excess of any commission or of the power of the belligerent to issue a 
commission restricts the scope of the law of "piracy" essentially to two areas: 



United States Law 173 

(1) the municipal law relating to robbery within the jurisdiction of the 
municipal Admiralty courts, and (2) whatever might remain of the original 
Roman and Mediterranean conception of "piracy " as the behavior of states or 
belligerents defined by a positive law system as outside the group governed 
directly by the system. 

This approach was not restricted to American executive branch officials. It 
was taken by an Italian Umpire in 1863 rejecting a claim by American 
investors (chiefly Cornelius Vanderbilt) against Costa Rica arising out of the 
war of 1856 between that country and Nicaragua in which American 
property in Nicaragua had been destroyed. In 1854 the government of 
Nicaragua had been overthrown by adventurers led by William Walker, an 
American. In the words of CDR Joseph Bertinatti, the Umpire in the later 
arbitration, "The new government of Nicaragua . . ., though illegitimate and 
piratical in its origin, . . . was in fact . . . the only government of that state. "^ 
Costa Rica intervened in 1856 to oust the "Rivas- Walker" government of 
Nicaragua. For reasons that are not clear, the American investors then seem 
to have convinced the Rivas- Walker Government to "nationalize" their 
property in Nicaragua and hand it over to a second private company 
organized under Nicaraguan law by the same investors. The property was 
eventually destroyed by Costa Rica in the war. The American investors' legal 
theory in the arbitration appears to have been that the Rivas-Walker 
government was merely a group of "pirates," therefore incapable of 
changing property rights; that the destruction of the Americans' property by 
Costa Rica was therefore the destruction not of property legitimately used by 
the Rivas-Walker people or those legal persons deriving title from them, but 
of "neutral" property not legitimately the object of belligerent operations. 

This attempt to manipulate the legal labels to insulate American investors 
from the consequence of their own political activities in Nicaragua was 
rejected by CDR Bertinatti on several grounds. One, that the Corporation 
created under Nicaraguan law was Nicaraguan, and that the law of claims did 
not permit foreign investors to assert the neutrality of their indirectly owned 
property, is irrelevant to the current study. 225 Another, that "the fact, which 
is more eloquent than words, shows that it was a public war and a regular war, 
fought as such on both sides according to the civilized usages of warfare" and 
that during the conflict the United States "recognized the Rivas-Walker 
government, not only as belligerent, but also as the regular government of 
Nicaragua" can be seen to defeat the use of the concept of "piracy " as a basis 
for denying governmental competence to a de facto authority for the purpose 
of private claims. 226 The importance of this approach will become apparent in 
the next section. 

The United States position regarding the use of the legal word and concept 
of "piracy" in cases of political rising, based probably on the Revolutionary 
war experience, reviewed above was absolutely to deny the propriety of the 



174 The Law of Piracy 

word. In 1838 Canadian and American raiders based in New York State 
skirmished with British forces in Canada. In the correspondence that 
followed, Mr. H.S. Fox, the British Minister in Washington, referred to 
British-Canadians "defending the British territory from the unprovoked 
attack of a band of British rebels and American pirates." 227 Daniel Webster, 
the American Secretary of State, replied: 

But whether the revolt be recent or long continued, they who join those concerned in it, 
whatever may be their offence against their own country, or however they may be 
treated, if taken with arms in their hands in the territory of the Government, against 
which the standard of revolt is raised, cannot be denominated pirates, without departing 
from all ordinary use of language in the definition of offences. 228 

At the time, Great Britain in no way had "recognized" any degree of 
belligerent status in the Canadian rebels, and the United States was entirely at 
peace with Great Britain, referring to the problems in Canada as "civil 
commotions," not "war" or "belligerency." 229 

Civil War of 1861-1865. The entire question of the validity of a commission 
issued by an unrecognized authority, and the possibility that the legal results 
of "piracy " could be attached to an attack under color of such a commission, 
even if not animo furandi, but instead animo belligerandi, arose in the United States 
during the Civil War of 1861-1865, and the entire naturalist-positivist debate 
broke out again. This time, there was an ironic twist in that the arguments 
that were persuasive to the slavery-hating Story, who felt until the cases and 
his work on conflict of laws theory convinced him otherwise, that the natural 
law of property gave universal scope for American action against "piracy," 
now became attractive to the slavery-justifying Confederate States and their 
sympathizers. From their point of view, the actual hostilities occurring 
between the states of the southern Confederacy on the one hand and the rump 
of the Union on the other should determine legal labels regardless of the 
policy reasons that might be advanced in the north for preferring a different 
set of labels. Their "naturalist" argument was that the substantive law arises 
from facts and traditions that judges are able by training and empowered by 
Constitutional law and tradition to find and declare; that under that law, the 
actions of southern privateers and navy commissioners were public, not animo 
furandi, and fit the labels involved in a legal status of belligerency; they were 
entitled to be treated as prisoners of war if caught; their legal captures could 
convey valid title after Prize court proceedings. To the unionist judges, the 
political branches of the American government had the legal power to 
determine the classifications of events, and the courts were bound to apply the 
law growing out of those classifications. If the Confederate authorities were 
unrecognized, their commissions were simply pieces of paper authorizing 
nothing; depredations done under color of those commissions could thus be 
classified "piracy." 



United States Law 175 

The question arose when President Lincoln declared a blockade of the 
Southern states' ports on 19 and 27 April 1861. 230 The Proclamations of 19 and 
27 April said respectively: 

Now, therefore, I . . . deemed it advisable to set on foot a blockade of the ports within 
the States aforesaid, in pursuance of the laws of the United States and of the law of 
nations, 

and 

[A]n efficient blockade of the ports of those States will also be established. 231 

The Congress did not act until 13 July 1861, when it "empowered" the 
President "to close the port or ports of entry" in any customs collection 
district of the United States 232 and "to declare that the inhabitants of [a] State, 
or any section or part thereof, . . . are in a state of insurrection against the 
United States" and that commerce unlicensed by him "shall cease and be 
unlawful so long as such condition of hostility shall continue." 233 The issues 
were the Constitutional power of the President to impose a blockade prior to 
the empowering legislation by the Congress, whether the Presidential 
or Congressional actions amounted to a "Declaration of War" within the 
sense of the Constitution and international law, 234 and whether Confederate 
States blockade runners and bearers of Confederate letters of marque were 
"pirates" or otherwise violators of international law as well as being 
criminals under the municipal law of the United States. 235 

The Supreme Court was deeply split, not on sectional lines, but on lines of 
legal theory. The "naturalist" position was taken by the 5-4 majority in The 
Prize Cases. 236 Judge Robert Grier of Pennsylvania wrote the majority 
opinion, 237 upholding the legal effect of the "blockade" on the ground that: 

A blockade de facto actually existed, and was formally declared and notified by the 
President. ... It is not the less a civil war, with belligerent parties in hostile array, but it 
may be called an 'insurrection' by one side, and the insurgents be considered as rebels or 
traitors. 238 

Support for this position was found in the American treatment of licensees 
of the unrecognized governments of rebelling Spanish colonies during the 
1810s and 1820s. 239 Mocking the practical implications of the "positivist" 
position by which all Confederate organization was a mere criminal 
conspiracy against the laws of the Union, Grier pointed out the absurdity of 
considering soldiers of the United States in the field to be "executioners" 
chasing down those accused of "treason." Reciprocally, he pointed out that 
the Confederates claimed belligerent rights at sea, and could not be heard 
now to deny the belligerent rights of the Union as "unconstitutionallU" [sic]. 240 
The result of this analysis was the conclusion that the status of the 
unrecognized belligerent need not be determined, but that "the belligerent 
party who claims to be sovereign may exercise both belligerent and sovereign 



176 The Law of Piracy 

rights." 241 Thus the "naturalist" approach was interpreted to allow 
"belligerent rights" to the Union without limiting the "sovereign rights" of 
the Union. The approach would give the same "belligerent rights" to the 
Confederacy, but not necessarily "sovereign rights"; to compose the 
Supreme Court majority it was not necessary to go that far and actually hold 
that the Confederacy had "belligerent rights" equivalent to those of the 
Union. 242 The result of this approach in practice was that a Virginia vessel 
whose captain had not known the war had begun was condemned (The Brig 
Amy Warwick); another Virginia vessel outward bound with cargo owned by 
northerners was condemned but her cargo restored as not "enemy property" 
(The Schooner Crenshaw); a British vessel was condemned on the ground that 
she had violated the blockade order after notice, as a mere business risk — to 
finish loading (The Barque Hiawatha); and a Mexican vessel was condemned 
for knowingly entering a blockaded port (Biloxi, Mississippi) without a 
permit (The Schooner Brilliante) . 243 

The dissent by Justice Samuel Nelson of New York 244 took a straight 
"positivist" line. Lincoln's declaration was not classifiable as a blockade jure 
belli because there was no legal status of war, no Declaration of War by the 
Congress, when he made his proclamations. They represented more a 
municipal law closure of ports "in the nature of a blockade." The Act of 
Congress on 13 July 1861 was legally sufficient to serve as a Declaration of 
War under the Constitution, he said, but came too late to endow Lincoln's 
proclamations with legal effect against the four vessels before the court. 
According to the dissenters, the two vessels owned by "neutrals" should have 
been released to their owners because a strictly internal proclamation with 
strictly territorial application was not enough to bring the law of belligerent 
prize into play. With regard to the ships owned by Americans from the 
Confederate States, Nelson and the others in the narrow minority would have 
released them on the ground that the President's proclamations exceeded his 
Constitutional powers and were a legal nullity in the United States. 245 

This split of legal thinking is evident throughout the American Civil War. 
On 3 July 1861, after President Lincoln's Proclamations asserted some 
belligerent rights in the Union and before the ambiguous legislation that the 
Supreme Court majority of one could regard as equivalent to a Declaration of 
War for the purpose of authorizing the President to begin a blockade 
effective against both Americans and neutral foreigners, the Confederate 
warship Sumter burned a Union merchant vessel, the Golden Rocket, triggering 
a series of insurance claims. The policy covered hazards of "the sea, fire, 
enemies, pirates, assailing thieves, restraints and detainments of all kings, 
princes or people, of what nation or quality soever, barratry by the 
master ..." and some other risks, but an additional provision amended all 
that by making an exception to coverage if the vessel were subject to 
"capture, seizure or detention ..." regardless of the other stipulations of 



United States Law 177 

the policy. The question was whether the burning by Confederate forces at a 
time the Union authorities did not even unambiguously concede a status of 
belligerency, much less a legal power in any Confederate authorities to 
license depredations under the laws of war against Union shipping, fell within 
the exception. In Dole v. New England Mutual Marine Ins. Co. 246 a 
Massachusetts court held that the term "capture" as used in the policy could 
describe the taking by the commissioner of one side in "an actually existing 
state of war between it and the government of the United States," finding 
support for this naturalist conclusion in the fact that the authority of the 
Confederate leadership to conduct a war according to the international rules 
had been recognized by "two of the leading nations of Europe" (Great 
Britain and France). As an objective matter, therefore, it would be possible 
for a jury to conclude that the "capture" exception applied, and the case was 
ordered to trial. 247 The possibility that this way of handling the situation 
might lead to an inconsistency between the classifications of the judicial 
branch of the American Government and the other two branches of that 
government did not seem to be considered seriously, apparently because the 
case was viewed as a matter simply of interpreting an insurance contract, not 
of interpreting the foreign relations or legal status of the United States against 
the Confederate States, neither of whose public authorities in any guise was a 
party to the suit. 

A similar result came out of another case arising out of the same incident in 
which a different insurance company was sued in Maine. In Dole v. 
Merchants' Mutual Ins. Co. 248 the Court concluded that the most extreme 
"positivist" position did nothing to require the Confederate commissioner to 
be classified a "pirate," although that classification was not ruled out: 

War is an existing fact, and not a legislative decree. Congress alone may have power to 
'declare' it beforehand, and thus cause or commence it. But it may be initiated by other 
nations, or by traitors; and then it exists, whether there is any declaration of it or not. . . . 
But in a civil war, those who prosecute hostilities against the established government are 
also traitors. And their acts are robbery or murder on the land, or piracy on the sea. 
[With regard to the burning of the Golden Rocket], such a felonious and forcible taking on 
the high seas was piratical and belligerent, and in either case was a capture and a seizure, 
within the terms of the warranty [emphasis sic]. 249 

The fact that the actions of the political branches of government were 
ambiguous, indicating differing views as to the legal relations that applied 
between the Union and the Confederacy in the minds of all concerned, was 
bluntly recognized in another case arising out of the maritime depredations of 
a Confederate raider, the Jeff Davis . In Fifield V. Insurance Co. of State of 
Pennsylvania, 250 Judge Woodward wrote: 

I suppose that any government, however violent and wrongful its origin, which is in the 
actual exercise of sovereignty over a territory and people large enough for a nation, 
must be considered as a government de facto. 251 



178 The Law of Piracy 

He then reviewed the two views of secession that had split the lawyers of the 
political arms of government and concluded that: 

[I]t would be very difficult so to generalize the various, discrepant, and sometimes 
inconsistent measures that have been taken against the rebellion as to enable us to 
declare whether the President and Congress regard the seceded states within or without 
the Union. 252 

The instant case presented a perfect example, in that the crew of the Jeff Davis 
had already been convicted of "piracy" by the judiciary, but the President, 
"after the conviction of the crew of the Jeff Davis for piracy . . . interposed 
and restored them to the authorities of the Confederate States.*' He did not 
pardon them; "he treated them as public enemies, and thus, . . . recognized 
the belligerent rights of the power that sent them forth. . . . " 253 The court 
concluded that the capture was "belligerent" and not "piracy," applying the 
labeling system it construed out of the actions of a policy-making branch of 
government overruling the judiciary in the very fact situation before the 
court. 254 

President Lincoln's exchange of the convicted "pirates" in the case of the 
Jeff Davis 25S does not stand alone. Under instructions from Judges Grier and 
Cadwalader in a case in Pennsylvania in 1862, convictions were obtained on a 
"positivist" charge of "piracy" against a Confederate raider named Smith 
and others. Under an agreement between the two judges and the prosecuting 
authorities, the prisoners were not sentenced but were transferred to military 
control as prisoners of war. 256 A Confederate adventurer named Burley (or 
Burleigh) was extradited from Canada to the United States in 1864 under the 
"piracy" provision of the Webster-Ashburton Treaty, but Judge Fitch of 
Ohio at the trial held that his acts were "belligerent" and not "piracy" 
because lacking "animumfurandi." 257 

While the Prize Cases enabled the Union forces to institute and enforce a 
blockade of Confederate ports against neutral vessels, and state court judges 
of varying persuasions were able to vent their frustrations against the 
Confederate authorities in harsh words without actually doing violence to the 
apparent intentions of the innocent parties whose contracts were before the 
courts for interpretation, Federal District court judges were facing the same 
difficulties on the lower levels. Two cases in 1861 will illustrate the confusion. 
In Massachusetts, District Court Judge Sprague charged a Grand Jury with 
regard to the Confederate seamen whose separate cases were to be presented: 

If war is actually levied, all those who perform any part, however minute, or however remote from 
the scene and who are actually leagued in the general conspiracy are to be considered as traitors. 258 

He then went on to define "pirates:" 

Pirates are highwaymen of the sea, and all civilized nations have a common interest, and 
are under a moral obligation, to arrest and suppress them; and the constitu- 
tion . . . enables the United States to perform this duty, as one of the family of nations. 
Pirates are called and recognized as enemies. They carry on war, but it is not natural 



United States Law 179 

war; and they are not entitled to the benefit of the usages of modern civilized 
international war. There being no government with which a treaty can be made, or 
which can be recognized as responsible for the acts of individuals, the individuals 
themselves are held amenable to criminal justice, and liable to be put to death for the 
suppression of their hostilities. If a number of persons, large or small, associate together, 
and undertake to establish a new government, and assume the character of a nation, and 
as such to issue military commissions, any other nation may, according to its own view 
of policy or duty, either utterly refuse to recognize the existence of such assumed 
government, and treat all who, acting under it, commit aggressions upon the ocean, as 
mere pirates; or each nation may fully recognize such new government; or it may adopt 
any intermediate course between these two extremities, — to some extent, and for some 
purposes, recognize the existence of the new government, while in other respects, and 
for other purposes, it rejects its pretensions to be deemed a nation. Some of the nations of 
the earth, and particularly Great Britain, have taken this intermediate course in relation 
to the self-styled 'Southern Confederacy.' . . . She in no degree interferes with the 
manner in which we shall treat either our own citizens or foreigners who may be 
engaged in this conflict, even although [sic] such foreigners be British subjects. She 
leaves us to deal with them as traitors or pirates, according to our own sense of justice 
and policy. Against this her position, we have nothing to urge under the law of nations or 
treaty stipulations. 259 

Judge Sprague then went on to review the pertinent Federal legislation of 
the United States, including the "piracy" statutes of 1790, 1820 and 1847, 260 
leaving it to the Grand Jury to determine on the particular facts that might be 
presented to it whether any individuals ought to be indicted for "piracy" or 
"treason" under the laws of the Union for their actions in support of the 
Confederacy. It seems plain that the principal result of this charge was to 
reduce the question of the proper legal classification to one of municipal law, 
and that law for the purposes of a Grand Jury empaneled under the 
Constitution was the law of the Union. 

How this approach worked in practice in Massachusetts is not known 
beyond the evidence noted with regard to Fifield v. Insurance Company of 
State of Pennsylvania that some convictions for "piracy" were obtained at 
least in Pennsylvania, and that President Lincoln did not regard himself as 
bound by the rigid view of American classifications adopted by Judge Sprague 
and others, but treated even convicted "pirates" under this view as 
"belligerent enemies" subject to parole and repatriation without "pardon" 
under the laws of the United States. 

A rather less rigid view was taken by the Federal courts in New York. In 
the Federal District Court for the Southern District of New York Justice 
Nelson charged a petty jury regarding the same Federal statutes and 
continued as follows: 

Now, if it were necessary, on the part of the Government, to bring the crime . . . [of the 
Confederate raiders] within the definition of robbery and piracy, as known to the 
common law of nations, there would be great difficulty . . . upon the evidence. For that 
shows, if anything, an intent to depredate upon the vessels and property of one nation 
only — the United States — which falls far short of the spirit and intent, as we have seen, 



180 The Law of Piracy 

that are said to constitute essential elements of the crime. But the robbery charged in this 
case is that which the Act of Congress [of 1820] prescribes as a crime, and may be 
denominated a statute offence, as contra-distinguished from that known to the law of 
nations. . . . [As to whether there is a legal state of war between the Union and the 
Confederacy, that, according to Judge Nelson was a matter for] the departments of our 
Government that have charge of our foreign relations — the Legislative and Executive 
departments. . . . [U]ntil those departments have recognized the existence of the new 
Government, the Courts of the nation cannot. 261 

But the precedents of the Spanish colonies in America seemed to Nelson to 
raise confusing issues. The political arms of the United States government had 
not "recognized" any status in the revolted Spanish colonies with legal 
implications until 1822. 

Prior to this recognition, and during the existence of the civil war between Spain and 
her Colonies, it was the declared policy of our Government to treat both parties as 
belligerents . . ., equally entitled to the sovereign rights of war as against each other. 262 

Not only was he unable to state where this policy was "declared" prior to 
1822, but it appears that the Act of 1822 by which the independent status of the 
former Spanish colonies was "recognized" by the Congress made no 
difference in the courts. He implied that absent recognition there is no change 
in the prior legal relationship, thus that the Confederate raiders could not be 
regarded as authorized by either the law of an unrecognized Confederate 
government or by the international law of war prior to the "recognition" of a 
status of war by the political branches of government. But the facts that had 
resulted in the courts treating the commissioners of the Spanish colonies as 
belligerents as long as their depredations were aimed, within the terms of 
their commissions, solely against Spanish shipping, despite the silence of the 
political branches of the American government, apparently spoke loudly to 
some members of the jury. In U.S. v. Baker and others, "The jury were 
discharged, without being able to agree on a verdict." 263 

British judges had similar problems in classifying the American struggle 
within the system adopted by the political branches of the British government 
to try to reflect facts and policy in a coherent pattern of law. In May 1864 the 
United States sought extradition of a group of Confederate raiders who had 
seized an American merchant ship and then claimed asylum in England. 264 The 
Webster- Ashburton treaty of 1842 265 provided for the extradition of those 
accused of "Piracy" in Article X when the offense had been committed 
within the jurisdiction of either party and the person accused of committing it 
were found within the other. The extradition request was denied, but on such 
technical grounds that the suspicion must exist that the British court found 
itself in a dilemma between the classifications of "piracy " and "belligerency" 
and did not want to face the case squarely. Three judges wrote separate 
opinions for the majority. Judge Crompton pointed out that the question of 
whether the acts of depredation were "piratical" or "belligerent," with 



United States Law 181 

evidence that the captured goods were taken for the personal use of the 
accused, and not taken for submission to a Prize court, must be one for a 
jury. Then, instead of holding that there was enough evidence (or not 
enough) to warrant extradition and the submission of the case to an 
American jury on a charge of "piracy, " he construed the Treaty and statute 
to refer only to cases which could be tried only in the jurisdiction of the 
requesting state and not in the jurisdiction of the "asylum" state: 

. . . 'committed within the jurisdiction of the United States of America' 
I own, appears to me to mean within the peculiar jurisdiction of the United 
States, and would not be properly used if the common jurisdiction of every 
maritime nation in the world were meant [emphasis sic]. 99 Since all 
maritime nations, in his view, had equal legal powers to try "pirates," the 
"piracy" intended by the Webster- Ashburton Treaty must mean only 
municipal law "piracy," not "piracy jure gentium. 9 ' Interpreted this way, 
"piracy" to be extraditable under the terms of the treaty 266 must be a crime, 
like murder, punishable independently under the laws of the treaty partners 
but not committed within the prescriptive jurisdiction of both at the same 
time. Crompton thus seemed to presume that the international law 
regarding "standing" did not apply to "piracy," and that the only sort of 
"piracy" that would come within the terms of the treaty was that which 
was analogous to taking a commission from a foreign power to act against 
fellow-citizens as embodied in both British and American statutes. 267 Why 
taking a commission from a rebelling "authority" did not satisfy this 
requirement, he did not say. Indeed, his opinion is filled with apparently 
unsupported assertions, such as, "Suppose these persons rose up in mutiny, 
that is no less a piracy against the law of nations, and all other powers have 
the same jurisdiction to punish, although the ship is part of the territory of 
the country to which she belongs." 268 

Judge Shee agreed on the basis of the word "asylum" in the treaty and 
statute that "piracy jure gentium" was not covered and found that the 
American statutes of 1790 and 1819-1820 give a basis for this interpretation by 
distinguishing between "piracy on the high seas," which was "piracy jure 
gentium," and robbery in the waters appertaining to the United States. In his 
opinion, the Tivnan defendants looked like "pirates jure gentium," and not like 
"pirates" under American law because their acts occurred on the high seas. 
Judge Blackburn came to the same conclusion and found a way to avoid 
applying the American statutes of 1790 and 1819-1820 as overlapping the 
British statutes to bring the offense within the terms of the treaty and statute: 

But looking at the evidence, what was done by the prisoners is either taking the ship for 
plunder, which would be piracy jure gentium, in which case there is no power in us by 
statute to give them up, or an act of war, and consequently not triable anywhere. For 
although the Confederated States are not recognized as an existing power, yet they are 
as belligerents. 269 



182 The Law of Piracy 

Chief Justice Cockburn dissented, but solely on the ground that in his 
interpretation the treaty and statute provided adequately for the extradition 
of "pirates jure gentium." He pointed out that there were ample reasons for 
such a provision, such as the difficulties of trial in one jurisdiction when all the 
witnesses are in the other. As to the relationship of "piratical intent" to 
"belligerent intent," that, in his view, was a question for the jury. 270 

Reviewing the case as a whole, and considering that something very like 
extradition had in fact taken place in 1834 with regard to "pirates" totally 
independently of the treaty of 1842, 271 and that the defendants were not tried 
for "piracy" in England at all, the impression is left that extradition was 
refused because the British judges did not trust American courts to make the 
distinction that Chief Justice Cockburn indicated would be their duty, and 
that the British classification of events during the American Civil War would 
be disregarded by American courts bound by American classifications of the 
same events to deprive the Confederate raiders of the privileges of 
"belligerents" that the British felt they ought to have. The constant 
repetition that the prisoners might well be "jure gentium pirates" seems either 
an encouragement to the British authorities to try them before a British jury 
where the British classifications would have governed, or a politic sop to the 
American authorities requesting extradition, to indicate that the refusal was 
not based on British sympathies with the Confederate cause — whether or not 
that was in fact the case. 272 

The more or less definitive American classification of the Civil War did 
not come until thirteen years after the War ended. In Ford v. Surget 273 Justice 
Harlan for a unanimous court hit on an ingenious rationale. Although the 
Confederacy as such was legally a nullity as far as the Union was concerned, 
the governments of the individual states of the Confederacy remained 
governments under the American Constitution of 1787. The legal acts of the 
Confederacy, therefore, so far as they had legal effect within the individual 
states of the Confederacy, were entitled to all the respect of state laws under 
the Constitution. With regard to the military activities of the Confederate 
army, a "positivist" rationale was found for giving them legal effect: 

To the Confederate army was, however, conceded, in the interest of humanity, and to 
prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged 
under the laws of nations to the armies of independent governments engaged in war 
against each other, — that concession placing the soldiers and officers of the rebel army, 
as to all matters directly connected with the mode of prosecuting the war, on the footing 
of those engaged in lawful war, [and exempting] them from liability for acts o( 
legitimate warfare. 274 

Justice Clifford, in a separate concurring opinion, addressed the situation 
of the Confederate raiders directly. He began by citing the Prize Cases for the 
"naturalist" proposition that ". . . when the regular course of justice is 
interrupted by revolt, rebellion, or insurrection, so that the courts of justice 



United States Law 183 

cannot be open, civil war exists, and hostilities may be prosecuted to the 
same extent as in public war." 275 He noted with approval the refusal of the 
Massachusetts Supreme Judicial Court, and the Pennsylvania and Maine 
Supreme Courts to hold the Confederate States' commissioners to be 
pirates, 276 and concluded: 

Exceptional cases supporting the opposite view may be found in the State reports; but 
they are not in accord with the decisions of this court, and are in direct conflict with 
the great weight of authority derived from [international law]. 277 

Once again, as when viewing the attempt by Justice Story to preserve his 
universal-jurisdiction, univeral-standing, natural-law-of-property concep- 
tion of the international law of "piracy" derived from the coinciding 
municipal laws of the principal European maritime powers, in the face of 
the judicial-deference-to-policy-makers approach taken by the majority of 
the American Supreme Court under Chief Justice Marshall, there appears 
to have been a Supreme Court Justice restructuring the facts to suit his 
preference for a conceptual approach. Once again, the grand framework 
seemed unable to gain the support of a majority of the Court, although, 
again, not expressly rejected either. Once again, the majority took a view 
of the law based not on underlying structures of justice or evidence of the 
conscience of mankind perceived through a selective citation to the 
opinions of others, but based on amoral policy. The rationale for legal 
classifications seen by the majority was not any perception of underlying 
principle, but a series of decisions by the policy branches of government 
expressed in inconsistent terms and occasionally resulting in inconsistent 
policies that maximized the self-importance of the policy-makers by 
regarding their practices as entirely volitional. The privileges of 
belligerency were "conceded" to the Confederate Army; the reasons for 
that "concession" were political: "the interest of humanity" and "to 
prevent the cruelties of reprisals and retaliation." It is clear that if those 
factors had been regarded as less weighty by the policy-makers, as indeed 
they were from time to time, the "concession" need not as a matter of law 
have been granted. This approach, visible with regard to "piracy" since the 
time of Gentili at least, we have called "positivism. " And the same limits to 
the discretion of policy-makers are apparent, resting on reciprocity, the 
need to deal with a real world in which legal labels have strange effects if 
not related to some degree with facts, and the pressures from internal and 
external constituencies (in the case of the American Civil War, including 
the views of British statesmen and jurists with whom some contacts were 
economically and politically unavoidable, or avoidable only at exhorbitant 
cost to the Union). 

The American Civil War experience was summed up by Richard Henry 
Dana 278 in 1866 when annotating a new edition of Wheaton's classic text: 279 



184 The Law of Piracy 

The following propositions are offered, not as statements of settled law (for most of 
them are not covered by a settled usage of nations, by judicial decisions of present 
authority, or by the agreement of jurists), but as suggestions of principles: — 

I. The courts of a State must treat rebellion against the State as a crime. . . . If the acts are 
depredations on commerce protected by the State, they may be adjudged piracy jure 
gentium by the courts of the State. It is a political and not a legal question, whether the 
right to so treat them shall be exercised. 

II. The fact that the State has actually treated its prisoners as prisoners of war . . ., or has 
claimed and exercised the powers and privileges of war as against neutrals, does not 
change the abstract rule of law, in the Court. . . . 

III. If a foreigner knowingly cruises against the commerce of a State under a rebel 
commission, he takes the chance of being treated as a pirate jure gentium, or a belligerent. 
It is not the custom for foreign nations to interfere to protect their citizens voluntarily 
aiding a rebellion against a friendly State, if that State makes no discrimination against 
them. 

IV. If a foreigner cruises under a rebel commission, he takes the chance of being treated 
as a pirate or a belligerent by his own nation and all other nations, as well as by that he is 
cruising against. If his own nation does not recognize the belligerency of the rebels, he is, 
by the law of his own country, a pirate. If it does, he is not. . . . [T]he courts of each 
nation are governed by the consideration whether their own political authorities have, 
or have not, recognized the belligerency. 

V. Where a rebellion has attained such dimensions and organization as to be a State de 
facto, and its acts reach the dimensions of war de facto, and the parent State is obliged to 
exercise powers of war to suppress it, and especially if against neutral interests, it is now 
the custom for the State to yield to the rebellion such belligerent privileges as policy and 
humanity require; and to treat captives as prisoners of war. . . Yet this is a matter of 
internal State policy only, changeable at any time. 280 

This approach, essentially leaving it to each municipal legal system to 
attach legal words of art as it chooses for policy reasons, and referring 
questions of legal policy within the American legal system to the arms of the 
government given policy discretion by the American Constitution, amounts 
to a total denial of the existence of any "international law'* of "piracy." 
"Piracy jure gentium" seems to have become a conception of each state's 
municipal law to Dana. 

The Later Practice, That this approach was carried over to international 
affairs is evidenced by the incident of the "Haytian insurgents" in 1869, when 
a circular dispatch from the government of Haiti attempted to convince the 
several diplomatic missions accredited to that country that the vessels of 
insurgents who had not been recognized by any other government "can not be 
considered according to the spirit of international maritime law otherwise 
than real pirates." The reply which the Secretary of State (Hamilton Fish) 
authorized the American Ambassador to Haiti to render said: 



United States Law 185 

We may or may not, at our option, as justice or policy may require, treat them as pirates 
in the absolute and unqualified sense, or we may, as the circumstances of any actual case 
shall suggest, waive the extreme right and recognize, where facts warrant it, an actual 
intent on the part of the individual offenders, not to depredate in a criminal sense and for 
private gain, but to capture and destroy jure belli. 2 * 1 

The apparently absolute inability of a state to convince other states to 
adopt its evaluation of the facts as warranting the label "piracy" at 
international law, was demonstrated repeatedly, most amusingly (from a 
distance of 100 years) in an incident of 1873 when a German naval commander 
acted on a Spanish proclamation terming some insurgent vessels "pirates" in 
the Mediterranean Sea. He captured one and claimed it as German prize, but 
his own government disavowed the act. Mr. Frederick T. Frelinghuysen as 
Secretary of State in 1883, ten years later, advised the American Ambassador 
in Haiti that the incident demonstrated, if anything, an abuse of the Spanish 
legal power to classify events in Spain. He adopted Justice Nelson's opinion 
from U.S. v. Baker and Others 282 without citing it, saying that "The rule is, 
simply, that a 'pirate' is the natural enemy of all men, to be repressed by any, 
and wherever found, while a revolted vessel is the enemy only of the power 
against which it acts." He went on: 

While it may be outlawed so far as the outlawing state is concerned, no foreign state is 
bound to respect or execute such outlawry to the extent of treating the vessel as a public 
enemy of mankind. Treason is not piracy, and the attitude of foreign governments 
toward the offender may be negative merely so far as demanded by a proper observance 
of the principle of neutrality. 283 

It was even found possible within this general orientation to rationalize the 
recapture of an American vessel from an unrecognized "belligerent" who did 
not seem to be a "pirate" because animated by political and not personal 
goals. That was to treat the captor as if he did not exist! In 1885 some 
American ships near Colombia were seized by an insurrectionary force. Dr. 
Francis Wharton, the Solicitor of the Department of State, advised that the 
vessels could be legally retaken by the United States when on the high seas 
even though the crew cannot be regarded as pirates or as belligerents: 

But, while this is the case, and while it may be conceded that vessels seized by them on 
the high seas are seized under claim of right, yet, vessels belonging to citizens of the 
United States so seized by them may be rescued by our cruisers acting for the owners of 
such vessels in the same way that we could reclaim vessels derelict on the high seas. 284 

A different view at the same time denied the existence of any intermediary 
classification between "pirate" and "belligerent." That view ran into such 
difficulties that it was ultimately disregarded in the case in which it was 
pronounced, and, without acknowledgment or deeper analysis, Wharton's 
approach was applied to get the result he would likely have wanted. The 
Ambrose Light 2 * 5 was a ship sailing under license of unrecognized authorities 
competing for control of a part of the state of Colombia. It was seized in the 



186 The Law of Piracy 

Caribbean by an American warship. No Americans were involved in the 
voyage of the Ambrose Light, and no Americans were victims of its activities. 
Judge Brown, of the Federal District Court in the Southern District of New 
York examined a huge selection of Supreme Court cases and publicists' 
writings (nearly all of which are analyzed above) to conclude that there was 
no intermediate legal position between "belligerency" and "piracy," and 
that the decision as to which of these alternative classifications were to be 
applied by American courts depended entirely on "recognition," although 
not necessarily the formal act of recognition by the United States 
government: 

[I]n the absence of recognition by any government whatever, the tribunals of other 
nations must hold such expeditions as this to be technically piratical. 286 

On the other hand, he pointed out that this holding, which rested almost 
entirely on cases involving criminal charges under the Acts of 1790 and 
1819-1820, was not related to any criminal charge: 

[T]his is a suit in rem for the condemnation of the vessel only; not a trial upon a criminal 
indictment of the officers and crew. . . . [Condemnation of the vessel as piratical does 
not necessarily imply a criminal liability of her officers or crew. 287 

Why the precedents in one area of law should apply in another area in 
which, by his own analysis the impact may be quite different and not 
reversable, is not analyzed. 

The final oddity in the case is that all of the lengthy analysis was at the end 
discarded when some diplomatic correspondence between the United States 
and the defending government of Colombia was construed by the court to 
imply "recognition" of a status of belligerency favorable to the authorities 
commissioning the Ambrose Light. The vessel was not condemned as 
"piratical, " but was returned to the officers and crew from which it had been 
taken. 288 Thus the case cannot represent more than yet another example of a 
learned judge using the opportunity of an interesting fact situation to 
expound a view of the law resting on "natural" principles divorced from 
reality, and finding that the best he could achieve was to show that his 
approach was not necessarily inconsistent with precedent and principle; that 
policy-makers, confronted with reality, had to make adjustments of policy to 
fit that reality, and the result was the creation of a legal pattern that brought 
about a sensible result in disregard of grand theories. 

Summary and Conclusion, This, then, represents the "classical" American 
view of the law of "piracy." It is possible to assert that by the end of the 
nineteenth century, as far as the United States was concerned, the 
international law relating to "piracy," if there were any such law, existed 
only insofar as adopted by the municipal law of the United States. The act of 
adoption was in part statutory, as in the Acts of 1790 and 1819-1820, in part 
through judicial decisions interpreting the references in those Acts to the 



United States Law 187 

"law of nations," and in part through diplomatic practice and internal 
practice of the United States during a period of ambiguously "recognized" 
belligerency. The "international law" of "piracy" as thus adopted into 
American law appears to have been in part the mere British municipal law 
relating to "robbery and murder within the jurisdiction of the Admiral" at 
English law, in part American statutes parallel to the English statutes of the 
time of William III terming "piracy" acts of treason or depredations 
analogous to treason undertaken under foreign license (which appear never to 
have been considered part of the "international law" of "piracy," probably 
because the particular acts involved would not be "crimes" by any other law 
than the law of the sovereign making the legislation), and in part the 
application to the interpretation of criminal statutes of the concept of 
"piracy" applied in England to property cases in which the taker of the 
property was considered to have no claim to it in an in rem action even if no 
criminal action was involved. The multiple confusions were caused in part by 
using a word, "piracy," that had a general pejorative meaning in vernacular 
usage since the early 17th century at least, and at least three distinct legal 
usages. It was compounded by the dilemmas in theory of those who would 
define "international law" to include the "natural law of nations" evidenced 
by parallel statutes in many countries, an approach rejected in practice during 
the early 19th century in connection with the slave trade both in Europe and 
America. It was further compounded by the conception of "naturalist "jurists 
that behind any rule of law reflecting moral values, there must lie a "perfect" 
model of which the rule is a mere reflection. This platonic approach to legal 
logic was rejected in practice by the more pragmatic jurists and publicists of 
the Anglo-American system, but remained so deep in the basic conceptions of 
"law" held by such eminent moralists and jurisprudential thinkers as Joseph 
Story, that it was never wholly forgotten or rejected. Rationales were 
developed for retaining this "idealist" conception in case after case in which 
it seemed to be irrelevant at best, morally interesting but legally deceptive 
normally, and obscurantist at worst. In practice, when a non-"idealist" 
statesman or judge was involved, the language of universality and conception 
of a perfect "international law" lying behind the imperfections of national 
legislation drop out with no apparent loss to coherence. 

On the other hand, the dominance of moral-free "positivism" in the 
thinking of the states and pragmatic jurists who have governed the actual 
policies of the United States from the earliest days of the Constitution of 1787 
was also limited. Not only was the strain of moralism never entirely 
eradicated from American legal thought, but references to "piracy" were 
found useful in political situations in which the combination of legal results 
and vernacular pejoratives served policy interests. The result in some cases, 
condemnations for "piracy" of political actors later treated as honorable 
political captives, could well look to many as a subservience of true "law" to 



188 The Law of Piracy 

ill-conceived policy, making the statesmen andjurists appear more hypocrites 
than upholders of the moral standards or practical needs of society. 

In the dynamic and competitive society of the United States, there was no 
way these different approaches could be combined into a single coherent 
jurisprudence; so necessarily, practical politics, thus "positivism," won in 
practice. The "naturalist" dicta of Story and others nonetheless remained for 
later generations to cite, and the jurisprudential battle went on. 289 

Notes 



1. Articles of Confederation, adopted by the Congress on 15 November 1777, ratified by all the states and 
entered into force 1 March 1781, Article II, in 69th Cong., 1st Sess., House Doc. No. 398, Documents 
Illustrative of the Foundation of the Union of the American States (1927) 27. 

2. Id. art. IV. 

3. See notes 1-165 and 1-201 above. 

4. Articles of Confer ation, arts. VI(4) and IX(6). 

5. Id. art. IV(5). 

6. Id. 

7. Id. art. IX(1). 

8. Id. art. IX(1) first clause. The other exceptions referred to there include the recourse to "war" by 
any state "actually invaded by enemies" or which "shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a 
delay till the United States in Congress assembled can be consulted." Id. art. VI(5). 

9. Id. art. IX(1). The power reserved to the states was only that power mentioned in art. VI. The power 
to establish maritime and prize courts is found in art. IX(1) alone, not in art. VI at all. 

10. Documents Illustrative cited note 1 above, at p. 109 sq. 

11. John Rutledge was the head of the delegation from South Carolina, former Governor of that state 
and at the time of the Constitutional Convention a judge. A frank character sketch of Rutledge by Major 
William Pierce of Georgia appears in id. at 106-107. 

12. Id. 471,475. 

13. Id. 479. 

14. Edmund Randolph was 32 years old and Governor of Virginia. He later became Attorney General of 
the United States. See below. An excellent biography is John Reardon, Edmund Randolph (1974). 

15. Documents Illustrative 560. 

16. Wilson is described by Major Pierce as "among the foremost in legal and political knowledge. "Id. 
101. 

17. Id. 723. 

18. Id. 

19. Article I, sec. 8, cl. 10. 

20. E.g., the power to regulate commerce with foreign nations, Art. I, sec. 8, cl. 3. This power has been 
exercised, and the counterfeiting of foreign currency and other documents in the United States is a 
criminal offense. 18 U.S. Code sees. 478-484, 486, 488-489, 492. This legislation was first enacted by the 
Congress only in 1884 (23 Stat. 22, 48th Cong., 1st Sess., Ch. 52) revised in 1909 (35(1) Stat. 1088 at 
1117-1119, 60th Cong., 2nd Sess., Ch. 321). 

21. Art. Ill, sec. 2, cl. 1. 

22. Art. Ill, sec. 3. 

23. Documents Illustrative 603 (Madison's Debates, Session of 23 August 1787). 

24. Id. 702. 

25. Id. 712; it appears in the Constitution as Art. VI, cl. 2. 

26. Hamilton, Madison, Jay, The Federalist (1788, Cooke, ed. 1961) 279. 

27. Madison's Debates 281. This seems rather an oversimplification by Madison. See text above at notes 7 
and 9. 

28. Id. 

29. Id. 

30. Id. 280-281. 

31. One major study of the early statutes and their supersession and judicial expansion in the first three 
decades of the 18th century is Dickinson, Is the Crime of Piracy Obsolete?, 38 Harvard Law Review 334 



United States Law 189 

(1925), sparked by the suggestion that rum running in violation of the Prohibition laws of the United States 
might be analogous to "piracy." Lacking the full background of the evolution of the conception of 
"piracy " before 1788, Dickinson's worthy work misses many of the major implications of these statutes and 
cases, unfortunately, so much of his research has had to be duplicated. I have condensed and focused this 
study as much as possible to avoid duplicating his analysis, but have repeated it with regard to the points of 
convergence and followed the line dictated by the sources and the focus of this study as to the points on 
which his emphasis on narrower issues and those timely only in the light of his special interests have made us 
diverge as to evidence and conclusions. 

There seem to be at least three quite different conceptions of piracy implicit in the statutes, cases and 
practice of the United States which Dickinson regarded as a seamless whole: (1) "Piracy" as a municipal 
law crime (whether or not based on conceptions of international law or the "law of nations"); (2) "Piracy" 
as the acts of unrecognized belligerents, like the privateers of "Buenos Ay res" or, eventually, the naval 
arms of the Confederate States of America in 1861-1865 and (3) "Piracy" as the military activity of 
unrecognized or "barbarous" political societies, like the Barbary states (with regard to which the attitudes 
towards the Indian tribes of the American continent were relevant but unstated in diplomatic 
correspondence). In this study, these distinctions have been shown to have been implicit in the classical 
writings from Roman times and reflected in doctrine throughout history. That consciousness affects the 
focus of the entire work and makes Dickinson's analysis seem confused in places. 

32. An Act to Establish the Judicial Courts of the United States, 1st Cong. 1st Sess. ch. 20, 1 Stat. 73. 

33. 1 Stat. 76-77. The last quoted provision lay more or less moribund after the period now to be 
discussed until revived as a basis for extending United States federal courts' jurisdiction to a case involving 
torture by a Paraguayan official against a Paraguayan youth in Paraguay in 1976. Filartiga v. Pena-Irala 630 
F.2d 876 (2d Cir. 1980). See Rubin, U.S. Tort Suits by Aliens Based on International Law, 21 International 
Practitioners Notebook 19 (1983). Other cases are being presented and the proper scope of the statute is a 
matter of considerable debate in 1987. See exchange between D'Amato and Rubin in 79(1) AJIL 92-113 
(1985). An analysis of the relationship among admiralty, prize and tort law under the "law of nations" in 
the experience of the framers of the Constitution is Bourguignon, Incorporation of the Law of Nations 
During the American Revolution . . ., 71 AJIL 270 (1977). It seems to support Rubin's view. I am indebted to 
my colleague, Professor Leo Gross, for bringing this article to my attention. 

34. Judiciary Act sees. 4 and 11, 1 Stat. 74-75, 78-79. 

35. 1st Cong. 2d Sess., 1 Stat. 112. 

36. As to the issuance of letters of marque and reprisal to privateers active against French vessels during 
the undeclared war with France of 1798-1800, see below at notes 154 to 159. 

37. 1 Attorney Generals' Opinions (AG) (1841 ed.) 10 at 10-11. There are two official compilations of the 
earliest Attorney Generals ' Opinions. The edition of 1841 is more complete with regard to volume 1 . The same 
volume in the edition of 1852 is more commonly found in law libraries. 

38. 1 AG 33, opinion dated 6 July 1795. 

39. Id. 

40. 12Bevans, Treaties and Other International Agreements of the United States of America 1776-1949(1974) 13; 8 
Stat. 116. The precise term of the treaty involved was article 27, by which each side agreed to deliver up to 
the other "all persons who, being charged with murder or forgery committed within the jurisdiction of 
either, shall seek asylum within any of the countries of the other ..." 

41. 1 AG (1841 ed.) 48-49, opinion dated 14 March 1798. 

42. Id: 50-51. Lee two days later considered the possibility that the Nigre might turn out to be neither 
French nor a "pirate" vessel, but British. In that case, he suggested that if the court find that she has done 
"nothing contrary to the laws of nations or treaties, she will be acquitted" and go free. Id. 51-52. This last 
opinion, dated 22 September 1798, is not reproduced in the 1852 edition of id. 

43. See text at notes 11-60 sq. above. It will be remembered that Kidd had two commissions and that 
there is general language in the case and some other writings asserting that action in excess of a commission 
is "piracy." It may also be remembered that that language was criticized above and the result of the trial 
attributed to Kidd's disregard of his obligations to the commission-granting authority and not to excesses 
against his victims. 

44. 11 & 12 Will. Ill c. 7 (1700) sec. viii, set out in text at note 11-32 above and in Appendix LB below; the 
American Act of 1790, cited note 35 above, says, in section 9: 

9. . . . That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility 
against the United States, or any citizen thereof, upon the high sea, under colour of any 
commission from any foreign prince, or state, or on pretence of authority from any person, 
such offender shall, notwithstanding the pretence of any such authority, be deemed, 
adjudged and taken to be a pirate, felon and robber, and on being thereof convicted shall 
suffer death. 
This statute does not define "piracy," or any "crime" under international law, but, like the British 



190 The Law of Piracy 

statute of 1700, makes criminal at American municipal law certain acts by American citizens against other 
American citizens only. It is not entirely clear what "piracy" means in this context, disjoined by "or" from 
the word "robbery, "both apparently confined to "the high sea." See text at notes 137 sq. below at which 
the fuller range of foreign commissions will be discussed in a single section. 

45. As to the English root of the idea, and the confusion between this sort of "treason" and the 
international law of "piracy, "see text at note 1-201 andch. II above. The American view expressed in sec. 
9 of the 1790 Act was identical, but the reasoning underlying it is not expressed in any known document. It 
probably merely adopts the British view of 1700, with which lawyers in the American colonies had been 
familiar for nearly a century. 

46. Bemis, Jay's Treaty (1923, rev'd ed. 1962), Appendix III, comparison of Jay's Draft of September 30, 
1794, with the Treaty Signed by Jay and Grenville on November 19, 1794, 391 at p. 426-432. 

47. Id., pp. 291 sq. Cp. instructions 4, 12, 14 at p. 293-4, 295. 

48. 11 Bevans 516 at 508-519, art. VI. Grammar sic: "Each Party" should presumably have been plural: 
"The Parties severally." 

49. Oddly, the Spanish original does not mention "robbers" only "algunos Piratas en Altas Mar." See 
parallel texts in Bemis, Pinckney's Treaty (1926, rev'd ed. 1960), Appendix V, p. 343 at p. 350. Presumably, 
Pinckney thought the phrase "Robbers on the high seas" explained the word "pirates" while the Spanish 
negotiators construed the word "Piratas" to include some activity on land as well as on the high sea, and 
thus sought to restrict the application of the article as it might apply in Spanish Florida. But direct evidence 
to support these speculations is not available within the reasonable compass of this study. 

50. Id. art. IX at p. 350. 

51. Id. art. VIII. 

52. Id. art. XIV. 

53. Levy was barely 20 years old at the time. He led a remarkable life. See 11 Dictionary of American 
Biography 203-204. 

54. U.S. v. Tully and Dalton, 1 Gallison 247 (1812) at p. 252. 

55. Story cites 4 Blackstone, op cit. note 11-153 above, p. 72. See text at note 11-155 above. 

56. U.S. v. Tully and Dalton, op. cit. 252. Per contra, Sir Charles Hedges, quoted at note 11-60 above, 
required that the mariners "shall violently disposses the master." Story does not cite Hedges's charge in 
Rex v. Dawson on this. 

57. Id. 254. The statutory language is set out above at note note 35. 

58. Id. 

59. Id. 256. Molloy, op. cit. note 1-175 above 41, second paragraph of ch. IV sec. xvii. Molloy's support for 
this assertion is a statute of 14 Edw. Ill not more closely identified. The only statute of 14 Edw. Ill in any 
way pertinent to any of the questions addressed here appears to be 14 Edw. Ill st. 2 ch. 2 (1340) which 
implements chapter 30 of Magna Carta by providing for the safe reception and departure of "all 
Merchants, Denizens and Foreigners (except those which be of our Enmity)" who pay the prescribed 
taxes. 1 Pickering, op. cit. 508 ["Et come y soit contenuz en la Grande Chartre ae toutz marchantz eient suave et seure 
conduyt daler hors de nostre roialme dEngleterre . . ., Nous . . . volons etgrantons . . . ae touz marchantz denzeins etforeins, 
forspris ceux qe sont de nostre enemite, puissent sanz estre destourbe sauvement venir en le dit roialme ..."]. This does not 
appear to be the statute Molloy had in mind. 

60. U.S. v. Howard and Beebee, 3 Washington 340 (1818). 

61. Id., p. 344 sq. No other section of the Act came near to fitting the facts. 

62. U.S. v. Palmer et al., 16 U.S. (3 Wheaton) 610 (1818). See text at notes 75 sq. below. 

63. U.S. v. Howard and Beebee at p. 346-349. 

64. Cited note 54 above. 

65. U.S. v. Ross, 1 Gallison 54 (1812). 

66. Id. 627. Story's citations, principally to Coke's Third Institute, address the reach of the Admiral's 
jurisdiction in English law. He did not distinguish between the Admiralty jurisdiction on board English flag 
vessels in distant waters and foreign vessels in those waters, thus concluding that the Admiralty courts of all 
countries have overlapping jurisdiction in all navigable waters, even territorial and perhaps even internal 
waters of foreign states, regardless of the flags flown or the nationality of those involved. 

67. See text at notes 11-64 sq. above. Molloy thought territorial seas jurisdiction was exclusive in the 
territorial state. 

68. See text at note 11-72 above. 

69. U.S. v. Pedro Gilbert & Others, 2 Sumner 19 (1834). In this case Judge Story was sitting as ajudge of a 
Circuit Court in an appeal by seven defendants from their conviction after five out of the original 12 
defendants had been acquitted following trial in an American District Court. Story denied the petition for 
a new trial for complex constitutional reasons involving double jeopardy, suggesting that the defendants' 
proper remedy after conviction on evidence insufficient to support an inherently contradictory result was 
to plead for a pardon from the Executive. These complexities of American Constitutional law lie beyond 
the scope of this study. It may be significant that Story's seminal book, Commentaries on the Conflict of Laws, 



United States Law 191 

was first published also in 1834. Its introduction is invincibly "positivist," denying the existence of any 
universal laws except the choice of law rules themselves (p. 29, 33). But Story does not address the slave 
trade or "piracy" in that book. The naturalist view of the universality of the choice of law rules is now 
substantially modified. See D.F. Cavers, A Critique of the Choice-of-Law Problem, 47 Harvard Law Review 
173 (1933). 

70. Id. note 1 on pp. 24-26. In fact the British did exercise jurisdiction in the case, but only over the 
property seized on board the "pirate" ship captured by Capt. Trotter within an African river. According 
to the recitation of facts, within a week after Pedro Gilbert and his friends had been convicted in the United 
States in October 1834 their personal property, which had been seized and held by Captain Trotter, was 
paid into the Registry of the appropriate British Admiralty Court by order of the Lords Commissioners of 
the Treasury. The question was whether the property, being "bonapiratarum," was to be accounted by the 
Crown as miscellaneous Treasury receipts or as part of the "droits" of Admiralty. Dr. Lushington held for 
the Lord High Admiral. The Panda [1842] 1 W. Rob. 423; 3 BILC 771. The jurisdiction of an Admiralty 
Court to pass on title to property before the court was not in question and Lushington 's reasoning sheds no 
light on British jurisdiction over accused "pirates." It is not clear why it took eight years from the time 
Pedro Gilbert was convicted until his property was legally disposed of. 

71. 1 AG 15. It is instructive to read this opinion and speculate on the reasons its logic struck Americans 
as unpersuasive when uttered by Libya with regard to the Gulf of Sidra in August 1981. 

72. U.S. vs. Peter Wiltberger, 3 Washington 515 (1819) at 515-518, 524. 

73. U.S. v. Wiltberger, 18 U.S. (5 Wheaton) 76 (1820) at 94-95, 104. 

74. Id. 106-116. 

75. Cited note 62 above. 

76. The violence in U.S. v. Palmer et al. was actually committed ashore, and there can be no doubt of 
the jurisdiction of the United States to make the perpetrators subject to American criminal penalties 
regardless of the definition of "piracy " under international law. The pronouncements for which the case is 
so often cited are dicta unnecessary for the decision. 

77. Id., p. 630-631, 632-633. 

78. Id. 641-642. 

79. Id. 643. 

80. See text at note 86 below. 

81. U.S. v. Klintock, 18 U.S. (5 Wheaton) 144 (1820), Marshall's words. 

82. Id. 152. 

83. Id. 153. 

84. This possibility was not farfetched. See text at note 138 and see note 140 below. 

85. 3 Stat. 510, 15th Cong., 2d Sess. ch. 77. It is reproduced at Appendix II. A below with Wheaton 's notes. 

86. Id. 513-514. 

87. 3 Stat. 600, 16th Cong. 1st Sess. ch. 113. It is reproduced at Appendix II. B below. 

88. 18 U.S. Code Sec. 1651 : "Whoever, on the high seas, commits the crime of piracy as defined by the 
law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life." 
The entire text of this part of the current U.S. Code is reproduced at Appendix II. C below. 

89. U.S. v. Chapels, 25 Fed. Cas. 399 at 403, Case No. 14,782 (1819). 

90. Id. 404. 

91. U.S. v. Smith, 18 U.S. (5 Wheaton) 20 (1820) at 161. 

92. Id. Note a, p. 163-180. 

93. See text above notes 11-60 and 11-70 above. Story's references to Wynne, The Life of Sir Leoline Jenkins 
(1724), seem consistently off by two pages from the original (1724) copy of Wynne available to me. 

94. Id. 161-162. 

95. Id. 164, 181-182. 

96. Id. 183. 

97. U.S. v. Pirates, 18 U.S. (5 Wheaton) 184 (1820). 

98. Id. 203. 

99. Id. 

100. Id. 205. 

101. Id. 195-197. 

102. Id. 199-201. 

103. See text at notes 65 and 66 above. 

104. 1 Moore, Digest of International Law, 702-705 (1906), statements by Jefferson (1793), Pickering (1796) 
and Madison (1805). On the various bases claimed by states for exclusive zones of one sort or another, and 
the loss of persuasiveness for the distinctions during the 19th century, and the apprehension that they are 
now coming back into vogue again as the need for simplicity and certainty is overborne by various other 
considerations, see Rubin, Evolution and Self-Defense at Sea, in 7 Thesaurus Acroasium 107-116 (1977). 

105. See text at note 54 above. 



192 The Law of Piracy 

106. The degree to which Story had to retreat on this is made clear by reading his elaborate opinion for a 
unanimous Supreme Court in 1844 on the question of whether a ship was "piratical" whose undoubted 
depredations were prompted by a vindictive and petty captain more than by any desire for gold. Story 
applied the precise language of the statute of 1819, section 4, which makes it a "piracy" at United States 
Federal law to engage in any "piratical aggression, or piratical search, or piratical restraint, or piratical 
seizure, as well as a piratical depredation," to hold the ship condemnable as a piratical vessel. He released 
the cargo to its owners, who had had no part in the aberrations of the captain. But he did not attempt to find 
the "piracy" to be such at international law by virtue of being a "felony" within the jurisdiction of 
Admiralty as he had in U.S. v. Tully and Dalton. U.S. v. Brig Malek Adhel, 43 U.S. (2 Howard) 209 (1844), 
reproduced in 1 Deak 56. The case is analyzed at greater length in the text at notes 217-219 below. 

107. 1 Stat. 347, 3rd Cong., 1st Sess., ch. 11. 

108. 2 Stat. 70, 6th Cong. 1st Sess. ch. 51. The penalty for serving in a foreign slaver was up to 2 years 
imprisonment and $2,000 fine; the fine for holding a business interest in the foreign slave trade was double 
the value of the interest held. American vessels involved in that detestable trade were forfeit with half the 
value going to the government and the other half distributed to the captors as prize. 

109. Cited at note 87 above, sees. 4 and 5, 3 Stat. 600-601. Quoted in Appendix II. B below. 

110. See The Antelope, 23 U.S. (10 Wheaton) 66 (1825). The unanimous opinion written by Chief Justice 
Marshall, a Virginian, held the slave trade not to be a violation of the law of nations despite the American 
and British statutes calling it "piracy. " For the analogous British case see The Le Louis [1817] 2 Dods. 210: 
"No lawyer, I presume, could be found hardy enough to maintain that an indictment for piracy could be 
supported by the mere evidence of trading in slaves. Be the malignity of the practice what it may, it is not 
that of piracy in legal consideration" (opinion by Sir William Scott). The British anti-slavery movement 
was spurred to other efforts, and the brilliant memorandum by Lord Castlereagh at the Congress of 
Aix-la-Chapelle in 1818 argued: 

If the moment should have arrived when the Traffic in Slaves shall have been universally 
prohibited, and if, under these circumstances, the mode shall have been devised by which 
this offence shall be raised in the Criminal Code of all civilized Nations to the standard of 
Piracy; they conceive that this species of Piracy, like any other act falling within the same 
legal principle, will, by the Law of Nations, be amenable to the ordinary Tribunals of any or 
every particular State; . . . the verification of the fact of Piracy, by sufficient evidence, 
brings them at once within the reach of the first Criminal Tribunal of competent 
authority . . . 

6 BFSP 77-85 at p. 79. This argument failed, as Portugal refused to agree and other states, principally 
France, took the position that without Portugal there could be no consensus, and as a matter of positive law 
Portuguese conceptions of the permissability of the slave trade were as persuasive as British conceptions of 
its impermissability. Eventually the British were successful in suppressing the international slave trade not 
by natural law arguments based on the horrors of the practice and natural rights of all humans, but by 
treaties with Portugal, France and the others in which, in return for other things, permission was given to 
Great Britain to stop the trade in each country's vessels. 

111. See ch. II above. 

112. See note 110 above. 

113. U.S. v. Lajeune Eugenie, 26 Fed. Cas. 832, No. 15,551 (D. Mass.) (1822). Story was sitting asjudge 
in the Federal District Court in Massachusetts under the Judicature Act of 1789. The quoted language is 
taken from the photographic reproduction of the case in 1 Deak 144 at p. 153. As mentioned in note 69 
above, Story's great work on Conflict of Laws, effectively destroying the logical underpinning of Cicero's 
natural law of nations, jus gentium, as an operative municipal law theory in a world of legally equal and 
independent states, did not appear until 1834. 

114. Appendix II. B below. 

115. U.S. v. Darnaud, 3 Wallace 143 (3rd Circ.) (1855) at p. 160-163. 

116. Id. 178. 

117. See note 110 above. France had insisted at Aix-la-Chapelle that whatever the moral evils of the 
slave trade, and whatever the French legislation on the subject, Great Britain could derive therefrom no 
legal right in the international legal order to stop French vessels on the high seas in order to suppress that 
detestable traffic. The French position was upheld by Sir William Scott in the Le Louis, cited above at the 
same note. It also underlay his refusal to consider condemning the Hercules [1819] 165 Eng. Rep. 1511, also in 
2 Dods. 353. See text at notes 206-207 below. 

118. See notes 110 and 117 above. 

119. Quoted in part in note 110 above. 

120. If the evils inherent in slavery could not be shown to be inconsistent with natural law in 1817 or 
1825, and counterargument regarding racial superiority and moral benefits conferred on the slaves could 
block legislation in the United States to abolish the entire practice state by state, or forbid implementation 



United States Law 193 

of the Fugitive Slave Law (see The Dred Scott Case, Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857)), it 
is hardly surprising that doubts exist today as to the sanctity of private property or even the 
impermissability of torture as a matter of human rights law. But this is not the place for further analysis of 
the inability of the legal order to create a consensus through natural law reasoning where the conscience of 
mankind does not in fact agree. 

121. Statute of the International Court of Justice, art. 38 (1) (c). This formula has its own history, of 
course, but it is not necessary for present purposes to trace it. 

122. The case is cited at note 113 above. The statute is reproduced at Appendix II. B below. 

123. Story, Commentaries, loc. cit. note 69 above. 

124. Cited at note 87 above; reproduced at Appendix II. B below. 

125. Set out in the text at note 86 above; reproduced in full at Appendix II. A below. 

126. This would, of course, include the port of London. 

127. This provision is still statutory law in the United States. 18 U.S. Code sec. 1653. Minor amendments 
were made in 1909 and 1948. The entire body of current United States positive law relating to "piracy" in 
the sense discussed in this study is in 18 U.S. Code sees. 1651-1661 and reproduced in Appendix II. C below. 
Those provisions of the Code relating to the President's authority to direct naval activity against "pirates" 
but not defining the term, are in 33 U.S. Code sees. 381-387. 

128. The high seas enforcement jurisdiction of the United States remains vested in the District Court of 
the district of the United States in which the offender is arrested or first landed. 18 U.S. Code sec. 3238. 

129. Consular courts with jurisdiction to settle legal disputes between nationals of the sending state 
alone are a very old Mediterranean institution. The first American consular court was established in 
Algiers by treaty dated 5 September 1795. 1 Malloy, Treaties, Conventions . . . (1910) 1. The treaty of 4 
November 1796 with the Bey of Tripoli permits the establishment of consular "jurisdictions" by each party 
"on the same footing with those of the most favoured nations respectively. " 2 Malloy, op. cit. 1784 art. IX at 
p. 1786. The treaty of August 1797 (no specific date in August) with the Bey of Tunis provides for the 
respective consuls to judge of "disputes" involving solely persons under his "protection," but if there is an 
offense that crosses nationality lines and involves killing, wounding or striking, the territorial sovereign 
has jurisdiction over the case and the consul a right merely to be present at the trial. Id. 1794, arts. 
XX-XXII at p. 1799. 

130. The first American experience of this was in reaction to activities of "Citizen" Edmond C. Genet, 
the Minister of the revolutionary government of France to the United States 1792-1794. Among the 
exercises of French "sovereignty" in American territory which Secretary of State Thomas Jefferson 
complained of and which led to a demand for Genet's recall was the condemnation at his direction by 
French consuls in the United States of British vessels captured by French revolutionary privateers and sold 
by them to American buyers. Jefferson regarded the establishment of Prize Courts without the permission 
of the territorial sovereign as a violation of international law; Genet regarded that a mere quibble based on 
"aphorisms of Vattel. " After protest, Genet was recalled by the French authorites. This affair is concisely 
summarized in 4 Moore, Digest of International Law (1906) 485-487. 

131. The tale of American continental expansion at the expense of the Indian population and political 
organization of the continent is far beyond the scope of this study. American reluctance to assume the 
obligations of sovereignty outside the continent was not overcome until the very end of the 19th century. It 
took over forty years of policy argument and political manipulation for those interested in establishing 
American rule in Hawaii to convince an administration and two thirds of the Senate necessary for advice 
and consent to the ratification of an annexation treaty, to achieve it. 1 Moore, Digest 481-504. 

132. 1 Kent, Commentaries on American Law (1826) Lecture IX at p. 169-179 focuses on "Offences against 
the Law of Nations." 

133. Id. 170. He considered the slave trade to be "condemned by the general principles of justice and 
humanity," but not "piratical" or "absolutely unlawful by the law of nations." Id. 

134. Id. 171. 

135. Id. 174. 

136. Id. 175. 

137. The most nearly comprehensive study of this use of the term "piracy" in Anglo-American practice 
remains Lauterpacht, Recognition in International Law (1947, reprinted 1948) ch. XVIII. As was noted above at 
note 31 with regard to Dickinson's treatment of the American municipal statutes, Lauterpacht 's balanced 
work suffers somewhat from a lack of historical perspective and seems to miss the depth of the 
jurisprudential argument. It has been felt necessary to duplicate and supplement his research with regard to 
the early materials and my conclusions are somewhat different. 

138. 16 Geo. Ill c. ix (1777). This statute was renewed annually until 1782. 18 Geo. Ill c. i (1779); 19 Geo. 
Ill c. i (1780); 20 Geo. Ill c. v (1781); 21 Geo. Ill c. ii (1782). These statutes are published in 31 Pickering 312; 
32 Pickering 1; id. 175; 33 Pickering 3; and id. 183. 

139. 1 Moore, Digest 168-169. By 1779 the British were considered to have demonstrated by their 
applying the law of war to land engagements with the Continental Army that they considered the land 



194 The Law of Piracy 

forces contacts to be governed by international law, not merely British municipal law as it might apply 
under the Statute of Treasons quoted at note 1-201 above. Cp. the treatment of James II 's land forces in 
Ireland in the 1690s, above esp. text at note 11-20. 

140. The British Ambassador in the Netherlands requested the Dutch to expel from Texel one "pirate, 
Paul Jones, of Scotland, who is a rebel subject and a criminal of the state" in October 1779. 10 Dictionary of 
American Biography 185. The Dutch did expel him, but did not arrest him for "piracy" or any other crime. 
They seem to have regarded the issue as solely one of maintaining Dutch neutrality in a "war" between 
others, even though the British regarded the situation as one of internal criminality among British subjects. 
The British view that "rebels" might be regarded as "pirates" seems consistent with the British legislation 
cited in note 138 above. The apparent rejection of this position by all the other European powers who were 
addressed on the issue is ambiguous. It might merely have been a denial by each power individually that the 
facts warranted the legal conclusion asserted by the British; it does not necessarily deny that rebels before 
achieving a degree of organization and success might be properly treated as "pirates" at international law 
as well as at the municipal law of the defending sovereign. 

141. See text at notes 40-52 above. 

142. Some are cited in another context at note 129 above. The treaties were that with Algiers of 5 
September 1795 (8 Stat. 133); Tripoli of 4 November 1796 (8 Stat. 154); and Tunis concluded on an 
unspecified date in late August 1797 and 26 March 1799 (8 Stat. 157). The Treaty with Algiers was 
superseded in June/July 1815 (8 Stat. 224), and that new treaty superseded in turn on 23-24 December 1816 
(8 Stat. 244). The Treaty with Tunis was amended in a Convention dated 24 February 1824 (8 Stat. 298). 
Treaty relations with Morocco were begun in January 1787 under the Articles of Confederation (1 Malloy 
1206) and that Treaty remained in force for the new United States until superseded on 16 September 1836 (8 
Stat. 484). 

143. The confusion in thought represented by the glib use of the word "pirate" in connection with the 
Barbary states began in the last decade of the eighteenth century and lasts until today. For an interesting 
example of the rhetoric as it reached scholarly circles, see Paullin, Commodore John Rodgers, 1773-1838(1910, 
republished by the United States Naval Institute 1967) 93-169. Commodore Rodgers was actively involved 
in the "war" against the "pirates" of Tripoli that began in 1802 and ended in 1805. A parallel not involving 
the word "pirate" might be drawn to treaty relations and "wars" with the American Indian tribes at this 
time. All the early treaties between the United States and the Indian tribes of North America are collected 
in volume 7 of the American Statutes at Large. The legal relationships reflected in the treaty form were 
analyzed by Chief Justice Marshall in The Cherokee Nation v. The State of Georgia, 30 U.S. (5 Pet.) 1 
(1831), concluding that "an Indian tribe or nation within the United States is not a foreign state, in the sense 
of the constitution, and cannot maintain an action in the courts of the United States" (p. 183). A more 
elaborate opinion resulting from an appeal by a citizen of Vermont from a conviction by a Georgia court 
applying its law to events within Cherokee territory, is Worcester v. The State of Georgia, 31 U.S. (6 Pet.) 
515 (1832). In that case Marshall found jurisdiction in the Supreme Court and overturned the conviction on 
the ground that under the Constitution, treaties and federal statutes, the law of Georgia did not apply in the 
territory set aside for the Cherokee nation by the law of the United States. In a later case, the Supreme 
Court held that Federal legislation could supersede treaty stipulations with the Indian tribes, and there was 
no violation of either American municipal law or international law in that event. The Cherokee Tobacco, 
78 U.S. (11 Wall.) 616 (1871). The Supreme Court in that case held that the Indians' sole redress was to 
appeal the questions of policy to the Congress (p. 621). It can be seen that while the legal label "pirate "was 
not used, the result implied by the use of the term — the submerging of the organized society to which it was 
attached to the legal system of its dominant neighbor — was achieved by interpretation of the Constitution 
and the subordination of the branch of law governing "treaties" with the victim society to the overarching 
law of the conqueror. In this way, the law of war could be argued to be not applicable to military relations 
with the victim society, but only a special category of the municipal law of the expanding state seeking to 
submerge its neighbor. Further analysis of this legal technique of engulfment as it applied to Indian tribes in 
North America is beyond the scope of this work. 

144. Cited at note 35 above. 

145. See note 44 above. This provision, with minor changes, is still law in the United States. 18 U.S. 
Code sec. 1652. It is reproduced in Appendix II. C below. 

146. Stat. 175, Act of 3 March 1847, 29th Cong., 2d Sess., ch. 51. This statute is still law in the United 
States. 18 U.S. Code sec. 1653. It is reproduced in Appendix II. C below. 

147. 2 Moore, Digest 974, citing a letter dated 23 October 1794 by Edmund Randolph as Secretary of 
State. 

148. Id., citing a report dated 25 January 1806 by James Madison as Secretary of State. 

149. The Act of 5 June 1794, 3rd Cong., 1st. Sess., ch. 50, 1 Stat. 381, was extended for two years by the 
Act of 2 March 1797, 5th Cong., 1st Sess., ch. 1, 1 Stat. 523, and further extended indefinitely by the Act of 
24 April 1800, 6th Cong., 2d Sess., ch. 35, 2 Stat. 54. All three statutes were repealed by the Act of 20 April 
1818, 15th Cong., 1st Sess., ch. 88, 3 Stat. 447. Also replaced by the Act of 1818 was another Neutrality Act, 



United States Law 195 

An Act to Prevent Privateering Against Nations in Amity with, or Against Citizens of, the United States, 
dated 14 June 1797, 5th Cong., 1st Sess., ch. 5, 1 Stat. 523. The Act of 1818 also repealed the Neutrality Act 
of 3 March 1817, 14th Cong., 2d Sess., ch. 58, 3 Stat. 370. See note 175 below. 

The Act of 1818 replaced these earlier statutes with a comprehensive Neutrality Act, preserving many of 
the terms of the previous legislation. The current annotated edition of the U.S. Code traces the provisions 
of 18 U.S. Code sees. 961 and 962 back to the Act of 1794. The language of sees. 958 and 959 also seems to 
have had its origin then. It would be tedious in this place to attempt to trace back to original sources all the 
terms in titles 18 and 22 of the U.S. Code that trace back to the Neutrality Acts of 1797-1818 and later. 

150. John Paul Jones himself sailed under Russian commission against Turkey and Sweden as a regular 
officer of the Russian Navy in 1788 while maintaining in full his American citizenship. 10 Dictionary of 
American Biography 187. The Confederated American States were neutral in that conflict. 

151. 2 Moore, Digest 976-977, memorandum of 16 March 1854 recording a conversation between the 
American Minister (Ambassador) at London, James Buchanan, and the British Foreign Secretary, Lord 
Clarendon. 

152. Id. Buchanan does not appear to have cited the cases he had in mind. 

153. See text at notes 81-83 above. That was the case in which section 8 of the Act of 1790 was construed 
to apply to foreigners acknowledging no state authority and attacking all victims indiscriminately, even if 
none of the immediate victims was American. Its logic rested on the Zouche-Blackstone-Story conception 
of the "law of nations." 

154. Of course, in a sense the issues arose much earlier, in the licensing of privateers and the 
commissioning of Naval officers like John Paul Jones to raid British shipping during the revolution, when in 
British contemplation the American states and Continental Congress lacked legal authority to issue 
commissions without the express approval of the Crown. But Jones was not caught and there is no record of 
any American privateers actually being tried for "piracy" by an English court. See text at notes 138-140 
above. 

155. U.S. Constitution, Article I, sec. 8, cl. 11. 

156. 5th Cong., 2d Sess., ch. 67, 1 Stat. 578. This American municipal legislation was not binding in 
France or on the French state as a matter of international law — the law between states. Presumably France 
and the United States Congress speaking for the entire union differed at this point as to the continued force 
of the alliance of 1778 (1 Malloy 479) and the Convention of 14 November 1788 (id. 490), which was 
formally ratified in 1790, after the new Constitution had gone into effect. The United States Supreme 
Court held in 1801 that the Act of 7 July 1798 abrogated this latter Convention as far as the United States 
was concerned even if France disagreed. Talbot v. Seeman, 5 U.S. (2 L. Ed.) 15, 1 Cranch 1 (1801). 

157. Act of 9 July 1798, 5th Cong., 2d Sess., ch. 68, 1 Stat. 578. 

158. See the classification system of Henry Marten, at note 11-43 above. 

159. 1 AG 49. As I read the penultimate quoted sentence an American acting against the United States 
with or without a French commission would be committing "treason;" a foreigner within the United 
States would be committing treason unless he had a French commission, in which case he would be a lawful 
combatant. 

160. See text at note 52 above. Perhaps Pinckney's Treaty was disregarded because Marshall foresaw the 
problems that became evident in 1821. See text at notes 193-197 below. 

161. U.S. v. Hutchings, 26 Fed. Cas. 440, No. 15,429 (1817) at pp. 441-442. 

162. See text at note 35 above. 

163. U.S. v. Palmer et al. cited note 62 above, at p. 636-637. 

164. Id. at p. 641-624. See text at note 78 above. 

165. Id., dissent by Johnson 636 sq. at p. 641. 

166. Id. 643, quoted in text at note 79 above. 

167. Id. 635. 

168. Id. 643-644. 

169. Obviously, this result was identical to that reached by Englishjurists by 1729. See text at note 11-47 
above. From this point on, it seems clear that the classification of "pirate" for a person depredating at sea 
without the license of a recognized government was regarded as coming from specific treaty law or from 
municipal law applicable to nationals or purported nationals of the depredator's state only. No cases 
indicating a contrary view have been found, and the theoretical writings making broader assertions of the 
requirement of a license contain no argument or precedent beyond those fully considered above. Cf. 
Supreme Court's decision (by Justice Henry Livingston) in thejosepha Seconda discussed in the text at notes 
198-200 below. 

170. Cited at note 149 above. 

171. Id., p. 384. See note 149 above. 

172. 1 AG 35 at 36. The opinion is dated 20 January 1796. The addressee is not specified; presumably it 
was Secretary of State Pickering. 

173. 1 AG 181 at 182. William Wirt to Elias Glenn, opinion dated 6 November 1818. 



196 The Law of Piracy 

174. Wirt cited Vattel, op. cit. note 11-137 above, Book III, ch. ii, sec. 15: "[N]o one may recruit soldiers 
in a foreign country without the permission of the sovereign [personne nepeut en enroller en pays etranger, sans la 
permission du Souuerain]." 

175. Cited and placed in context at note 149 above. The quoted language is in the Act of 3 March 1817 
and is repeated with a minor change in section 3 of the Act of 20 April 1818 that repealed the Act of 1817. 

176. Similar limitations appear in the replacement statute of 1818. 

177. Walker Lewis, John Quincy Adams and the Baltimore "Pirates," 67 Am. Bar Assoc. Journal 1011 
(1981) at 1013. 1 am grateful to Professor Edward Gordon of Albany Law School and The Fletcher School of 
Law & Diplomacy for bringing this article to my attention. Apparently, the outcome of the case continued 
to rankle in the mind of John Quincy Adams. As Secretary of State in the Monroe Administration and 
author of the parts of Monroe's State of the Union Address announcing the Monroe Doctrine on 2 
December 1823, he was probably responsible for the reiteration of Executive dominance over what the 
courts might call "piracy" by referring to both commissioned and "unlicensed" piracies being suppressed 
by American Naval action: 

Although our expedition, cooperating with an invigorated administration of the 
government of the island of Cuba, and with the corresponding active exertions of a British 
naval force in the same seas, have almost entirely destroyed the unlicensed piracies [emphasis 
added] from that island, the success of our exertions has not been equally effectual to 
suppress the same crime, under other pretenses and colors, in the neighborhood of Porto 
Rico. They have been committed there under the abusive issue of Spanish commissions. At 
an early period of the present year remonstrances were made to the governor of that island, 
by an agent who was sent for the purpose, against those outrages on the peaceful commerce 
of the United States, of which many had occurred. 

2 J. Richardson, ed. , Messages and Papers of the Presidents (1896, 1910) 776 at 783. It seems notable that both acts 
done unlicensed and acts done under "the abusive issue of" "commissions" are denominated "piracies," 
but that their legal results differ; the former were regarded as subject to immediate political action by the 
Navy, and the latter as subject to diplomatic remonstrance only, in the first instance. Despite the use of the 
word "crime," there is no mention of tribunals or their jurisdictional and substantive problems. This 
approach can be usefully compared with the British approach at the same period, when the word "pirate" 
was changing meaning and becoming a legal justification for political action in disregard of municipal 
criminal law and in increasing disregard of what had been thought to be the international law on the 
subject. See chapter IV below. I am indebted to my colleague, Professor Alan Henrikson of the Fletcher 
School of Law & Diplomacy, for bringing this paragraph of President Monroe's "Doctrine" speech to my 
attention. 

178. Text at notes 53 sq. above. 

179. See text at note 35 above. 

180. U.S. v. Jones, 3 Washington 209 (1813). 

181. Washington called it the Kyd case and cited 5 State Trials 313. No such case appears in How. St. Tr. 
(which was not in any event published until 1816) at that place, but from the context it seems clear that 
Washington was referring to the Kidd case rehearsed at length in chapter II above as it was reported in 
some earlier compilation. 

182. U.S. v. Jones at p. 216. Of course, the Kidd case was decided not by Common Law but by an 
Admiralty commission using Common Law procedures under the Act of 1536. See chapter II above. 

183. Id., p. 215, 220. Cp. Story's naturalist expansion of the law he asserted to be the international law of 
"piracy" in U.S. v. Tully and Dalton discussed in the text at notes 54-59 above. The precise language of the 
Act is in the text at note 35 above: "... murder or robbery, or any other offence which if committed within 
the body of a county, would by the laws of the United States be punishable with death." Story had 
expanded another clause of the definition relating to "piratically or feloniously" running away with a ship 
to include such running away even without the physical putting into fear that was necessary to meet the 
English Common Law of "robbery" definition normally used in English Admiralty courts. The Common 
Law definition of "felony " is complex: "Embezzlement" was not a felony, but a taking "animofurandi" by 
anybody not lawfully possessed could be. See 1 Hale, Pleas of the Crown (1685 ed.) 61-62. See notes 1-134, 
1-165 and 11-49 above. 

184. U.S. v.Jones, p. 223. 

185. See text at notes 91-96 above. 

186. See note 149 above. The Act of 20 April 1818 was in force in 1820. 

187. Presumably under the act of 1790, section 9. See notes 44, 135 and 18 U.S. Code sec. 1652 in 
Appendix II. C. below. U.S. v. Griffen and Brailsford, 18 U.S. (5 Wheaton) 184 (1820) at 204-205. 

188. U.S. v. Holmes et al., 18 U.S. (5 Wheaton) 412 (1820). 

189. Cited above at note 81. 



United States Law 197 

190. U.S. v. Holmes at pp. 419-420. The last phrase, "any government whatsoever, " seems to imply that 
the Buenos Ayres authorities would have been taken to be empowered legally to issue a commission, but 
the court believed that the jury might find that the depredation had occurred regardless of it. The position 
taken was essentially the same as in U.S. v. Klintock a few months earlier. See text at notes 81-83 above. 

191. Wheaton cited for this only the letter by Jenkins analyzed at notes 11-73 sq. above. 

192. Wheaton, Elements of International Law (Text of 1836 with Dana's commentary of 1866 and additional 
commentary by George Grafton Wilson) (CECIL 1936) sees. 124-125 at p. 162-164. Wheaton's view was by 
1836 somewhat narrower than that expressed in his comment on U.S. v. Wiltberger analyzed in the text at 
note 74 above. 

193. Cited at note 149 above. 

194. See text at note 52 above. 

195. Cited at note 149 above. 

196. The case was remanded to the Circuit Court for further proceedings on that point. 

197. The Bello Corrunes, 19 U.S. (6 Wheaton) 152 (1821) at 171. 

198. The Josefa Segunda, 18 U.S. (5 Wheaton) 338 (1820). 

199. Id. at p. 358. 

200. Id. 

201. 20 U.S. (7 Wheaton) 283 (1822). 

202. Id. 337. 

203. See note 52 and text at notes 194 and 195 above. Not only was Chaytor's nationality unclear, and 
thus his being a "citizen of the United States" within the terms of article 14 doubtful, but Story, apparently 
erroneously, categorized the Independencia as a public warship of Buenos Ayres and not a mere privateer. Id. 
346. 

204. Id. 348-349. 

205. Id. 355. 

206. The Hercules, cited note 117 above, at 1519. 

207. Id. 1518-1519. 

208. See text at notes 1-170 to 1-172 above. 

209. The Marianna Flora, 24 U.S. (11 Wheaton) 1 (1826) at p. 41. 

210. The Palmyra, 25 U.S. (12 Wheaton) 1 (1827). Story did not speculate as to whether France might 
have had a valid claim against Spain for what he apparently conceived to be a violation of the laws of 
maritime warfare. 

211. Statute of 3 March 1819, 15th Cong., 2d Sess., ch. 77 sec. 2, 3 Stat. 510 at pp. 512-513, extended by 
the statute of 15 May 1820, 16th Cong., 1st Sess., ch. 113 sec. 1,3 Stat. 600. Story refers to them as chs. 75 and 
112 respectively but there seems to be no doubt as to the language to which he was referring. 

212. The Palmyra at 16-17. 

213. Id. 16. 

214. U.S. v. Kessler (Circ. Ct., D. Penn.) 26 Fed. Cas. 766, No. 15,528 (1829). 

215. Id. 772. 

216. Id. 114. 

217. U.S. v. Brig Malek Adhel, cited at note 106 above, at 1 Deak 58-59. 

218. Id., 1 Deak 59. 

219. Id. 64-65. 

220. See text in note 44 and in text at note 145 above. Section 9 of the Act applies only to "any citizen" of 
the United States. Since it directs treatment as a "pirate" to any citizen who commits "piracy" or 
"robbery" against any other American citizen on the high seas "under color of any commission from any 
foreign Prince or State," the charge would stick even if there were no legal question of the capacity of the 
revolutionary government of Texas to issue such a commission. Of course, if there were no valid 
commission, section 8 of the Act of 1790, or section 5 of the Act of 1819, would apply and the Americans 
would have been "pirates" as far as the law of the United States was concerned. Section 8 of the Act of 1790 
is quoted in pertinent part at note 35 above. The Act of 1819 is reproduced in full in Appendix II. A below. 

221. 3 AG 120 at pp. 121-122, opinion dated 17 May 1836. 

222. Id., p. 122. 

223. Id. 

224. Accessory Transit Co. Claim, 2 Moore, International Arbitrations . . . 1551 (1898) at p. 1561. 

225. It is highly relevant to an understanding of such later cases as the Delagoa Bay Arbitration, in which 
a Swiss arbitral tribunal reluctantly held itself to be bound by the terms of an arbitral compromis to accord to 
British and American investors in a Portuguese Corporation in Mozambique the very protection refused to 
American investors in Nicaragua in this case. See 5 Parry, ed., British Digest of International Law 535 at 560. 
The literature on the Delagoa Bay Arbitration is voluminous and seems to be comprised mostly of 
claimants' arguments that the compromis forced on Portugal represents a better expression of the underlying 
natural law protecting investors than the constitutional phases of the legal order protecting national 



198 The Law of Piracy 

discretion with regard to national corporations in which foreigners have invested. The degree to which the 
international legal order gives an investor's state standing to protect investments made through companies 
of a nationalizing state, or a third state, is still a matter of considerable dispute. See The Barcelona 
Traction, Light and Power Company Case, (Belgium v. Spain), I.C.J. Reports 1970 1. 

226. Accessory Transit Co. Claim, cited note 224 above. Quotations are from p. 1561-1563, italicized 
words sic. 

227. Letter from Fox to Webster, 12 March 1841, 29 BFSP 1126 at 1127. This was the beginning of the 
famous correspondence in which Daniel Webster first formulated the phrase that has been taken to set 
forth the general international law of self-defense. It involved a band of British and Americans in a ship, the 
Caroline, planning a raid across the Niagara River from the New York shore. A British expedition raided 
the Caroline first in "self-defense" and sent her flaming over the falls. See 2 Moore, Digest 409-414. 

228. Letter from Webster to Fox, 24 April 1841, 29 BFSP 1129 at 1135. 

229. Id. 

230. 12 Stat. 1258-1259. Proclamations No. 4 and 5. 

231 . The history of the word "efficient" in this context is complex and beyond the scope of this study. It 
reflects most immediately the language of the Declaration of Paris of 16 April 1856 by which 51 parties, 
including all the major European maritime states but not the United States, agreed that "Blockades, in 
order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent 
access to the coast of the enemy." The American refusal to accept the Declaration went to other points 
than this. Roberts and Guelff, Documents on the Laws of War (1982) 24-27. 

232. 12 Stat. 255 sq., 37th Cong., 1st Sess., ch. 3 sec. 4 at p. 256. 

233. Id. sec. 5 at p. 257. 

234. This provision of the Constitution is cited at note 155 above. Its relationship to definitions of 
"piracy" was not considered at the Constitutional Convention of 1787 as far as available records show. 

235. The Proclamation of 19 April recites that "[A] combination of persons, engaged in such 
insurrection, have threatened to grant pretended letters of marque to authorize the bearers thereof to 
commit assaults on the lives, vessels, and property of good citizens of the country lawfully engaged in 
commerce on the high seas." Proclamation No. 4 cited at note 230 above. The Proclamation seems to 
assume that the Confederate States' authorities had no legal powers at all. 

236. The Prize Cases, 67 U.S. (2 Black) 635 (1862). 

237. He was joined by Justices James Wayne of Georgia, Noah Swayne of Ohio, Samuel Miller of Iowa 
and David Davis of Illinois. 

238. Op. cit. note 236 at pp. 666, 669. 

239. Id. 669, citing the Santissima Trinidad discussed in text at notes 201 sq. above. 

240. Id. 673. 

241. Id. 

242. That question created serious difficulties between the Union and Great Britain, when an American 
warship exercising belligerent rights to interdict contraband on neutral ships on the high seas removed as 
such "contraband" from the "Trent," a British ship, two Confederate emissaries, James Murray Mason 
and John Slidell. They were released after strenous British protest regarding the belligerent right of the 
Confederacy to send representatives abroad with diplomatic status, even if not received as the 
representatives of a "state" by any host government, and the impermissability of the Union exercising 
"belligerent" rights against neutrals while denying that a legal status of "belligerency" existed which 
would endow the other side with symmetrical rights. 7 Moore, Digest 626-630, 768-779; Adams, The 
Education of Henry Adams (1907-1918) 119-127. The Union Government (Secretary of State Seward) quickly 
apologized to Great Britain on the ground that even if there were a status of belligerency, this capture 
would have gone too far because there was no Prize court condemnation of Mason and Slidell as 
contraband. Mason and Slidell were released, thus implying the British were right, but avoiding a clear 
resolution of the labeling dilemma. 

243. The Prize Cases, cited note 236 above, 647-680. There is much interesting detail omitted concerning 
the law of blockade, but that is not the subject of this study. The release of the Crenshaw's cargo seems to 
confuse the law of blockade with the law permitting belligerent interdiction of only enemy property and 
neutral or friendly contraband on high seas. 

244. The others joining with Justice Nelson were Roger Taney of Maryland (the Chief Justice and 
author of the Dred Scott decision), John Catron of Tennessee and Nathan Clifford of Maine. 

245. The Prize Cases, cited note 236 above, 685-698. 

246. Dole v. New England Mutual Marine Ins. Co., 88 Mass. (6 Allen) 373 (1863), 18 Deak 301. 

247. Id. 309-310. 

248. Dole v. Merchants' Mutual Ins. Co., 51 Me. 465 (1863), 18 Deak 314. 

249. Id. 318, 326. Six judges concurred in the majority decision. Two dissented "holding that the taking 
was piratical, but not a capture ... as understood in contracts of insurance." Id. 326. 

250. Fifield v. Insurance Co. of State of Pennsylvania, 47 Pa. 166 (1864), 18 Deak 327. 



United States Law 199 

251. Id. 329. 

252. Id. 332. 

253. Id. 332-333. See also 2 Moore, Digest, 1082-1083. 

254. Id. 333. 

255. See text at note 253 above. For a bit more on the incident, see 2 Moore, Digest 1082-1083, where it is 
also noted that problems of third countries classifying Confederate commissioners as "privateers" led the 
Confederacy to place all its raiders under the command of regularly commissioned Confederate Navy 
officers. Those problems did not relate to "recognition," or they would have survived the switch in 
subordination. They related instead to the terms of the 1856 Paris Declaration, cited at note 231 above, 
under which it had been agreed by the signatories (not including the United States) that "Privateering is, 
and remains, abolished." The Confederate States were obviously not in a political position that would 
enable them to carry on the diplomatic correspondence necessary to contest the application to them of this 
statement of general international law ("and remains") regardless of the arguments available to the United 
States and the Confederate States on the point. 

256. 2 Moore, Digest 1079-1080. 

257. The jury nonetheless found him guilty; Burley was either permitted to escape or to forfeit a small 
bail (the facts are not clear). 2 Moore, Digest 1081-1082. 

258. 30 Fed. Cas. 1049, No. 18,277 (16 October 1861). 

259. Id. 1049-1050. 

260. Cited above at notes 35, 87 (extending the Act of 1819, cited at note 85) and 146. 

261. U.S. v. Baker and Others (1861), 5 Blatchford, Cases in Prize 6 (1866) at 12, 14. 

262. Id. 14. 

263. Id. 15. 

264. In re Tivnan and others, 5 Best and Smith 645 (1864). Lauterpacht, Recognition in International Law 
(1947) 302 note 3 refers to this case as In re Ternan and Others, citing 33 L.J.M.C. 201. It is not known 
whether the difference in name is an error by Best & Smith, the Law Journal for Maritime Cases, or 
Lauterpacht himself. 2 Moore, Digest 1080 refers to it as In re Tivnan. 

265. 93 CTS 415; the treaty had been enacted as statute law in England by 6 & 7 Vict. c. 76 (1843). 

266. Both England and the United States restrict the powers of their respective executives to 
"extradite" anybody for anything to those situations in which the executive authorities are authorized by 
municipal law under the respective constitutions to seize and transfer custody of an individual. 6 
Whiteman, Digest of International Law (1968) 727 sq.. 

267. See above at notes 11-32, 111-44. 

268. In re Tivnan, op. cit. note 264 above, at 685. 

269. Id. 686 at 689 (Blackburn), 690-696 (Shee). 

270. Id. 675 at 679-681. 

271. U.S. v. Pedro Gilbert & Others, cited at note 69 above. 

272. An identical result was reached in a Canadian case in 1863, the Chesapeake, 2 Moore, Digest 1080-1081. 

273. Ford v. Surget, 97 U.S. 594 (1878). As a matter of executive interpretation, within the United 
States, the decision was made by 1872 not to try the Confederate privateers, including Captain Semmes of 
the Alabama, as pirates, at least in part on the ground that the blockade of 1861 had established a status of 
belligerency with which the legal notion of "piracy" was considered incompatible. 2 Moore, Digest 
1082-1083. 

274. Ford v. Surget, p. 605. 

275. Id. 608. 

276. Id. 618-620, citing the two Dole cases and the Fifield case discussed briefly at notes 246-254 above, 
and, among others: Dole v. New England Ins. Co., 2 Cliff. 394; Planters' Bank v. Union Bank, 83 U.S. (16 
Wall.) 495 (1872); Mauran v. Insurance Co., 73 U.S. (6 Wall.) 1 (1868), 17 Deak 408; Monongahela Ins. Co. 
v. Chester, 43 Pa. St. 49; Hamilton v. Dillin, 88 U.S. (21 Wall.) 78 (1875); and Horn v. Lockhart, 84 U.S. (17 
Wall.) 578 (1873). 

277. Ford v. Surget, cited note 273 above, 622. 

278. Dana was no stranger to the perils of navigation. In his great narrative of adventure as a sailor in 
1834 he mentions outrunning "a small clipper-built brig with a black hull . . . armed, and full of men, and 
[who] showed no colours" in the South Atlantic about halfway between the Cape Verde Islands and Cape 
San Roque (Brazil). Dana, Two Years Before the Mast (1840) (Enlarged ed. 1869, Everyman reprint 1969) 
16-17. 

279. Wheaton, op. cit. note 192 above. 

280. Id. 164 note 84 at p. 168. 

281. 2 Moore, Digest 1086. 

282. See note 261 above. 

283. 2 Moore, Digest 1087. 

284. Id. 1088. 



200 The Law of Piracy 

285. The Ambrose Light, 24 F. 408 (S.D. N.Y. 1885), 18 Deak 112. 

286. Id. 114. 

287. Id. 117. 

288. Cf. 2 Moore, Digest 1098-1099. 

289. The " positivist" solution to the problem of "recognition" or "non-recognition" reflecting 
political interests rather than underlying perceptions of law motivating actual state behavior, evidenced 
well in the Union's giving captured Confederate soldiers and sea raiders treatment as prisoners of war, while 
withholding the formal grant of that status and calling them traitors and "pirates," did not come until the 
20th century. It is implicit in the reasoning of William Howard Taft as Arbitrator between Great Britain 
and Costa Rica in the Tinoco Arbitration (1923), 18 AJIL 147 (1924), holding the British refusal to 
"recognize" Tinoco as the government of Costa Rica for political reasons did not derogate from the legal 
effect of British acts implying acceptance of Tinoco 's position in Costa Rica. It is explicit in Kelsen's clear 
separation of "recognition" as a political act from "recognition" as a legal act. Kelsen, Recognition in 
International Law — Theoretical Observations, 35 AJIL 605 (1941). It is possible to go even further to 
distinguish "recognition" as a moral act from the other spheres. But that brings us to a realm of discussion 
unnecessary to enter in this study. 



201 



IV 

British Practice in the 
Nineteenth Century 



Eurocentrism and British Imperial Law 

British sea power emerging from the Napoleonic Wars so dominated 
international sea commerce that it is difficult throughout the 
nineteenth century to distinguish British interpretations of international law 
uttered for the purposes of self-justification and adversary argument from 
statements of international law persuasive on all states participating in the 
international legal order as defined in Europe. 1 

It is consistent with the facts to classify the British assertions of law as 
persuasive statements of true international law, acquiesced in by other states 
where not protested and, in any event, becoming the basis for a sort of stable 
order eventually accepted by statesmen generally as compelled by interna- 
tional law. It is equally consistent with the facts to classify the British 
assertions as mere adversary arguments resented and at times protested by 
other states (including non-European political societies treated for many 
purposes as states, although not conceded much more than the formal title and 
the legal capacity to conclude disadvantageous treaties) 2 but not pressed for 
political reasons irrelevant to the apprehensions of law held by those 
statesmen and their societies regardless of the British arguments and military 
power. It is even possible consistently with the facts to classify the British 
dominion over the seas as a kind of effective occupation in the sense argued in 
the 17th century by Grotius, 3 and British assertions of "international law" 
being merely a British municipal law classification of that part of British 
municipal law that was determined by the Crown or by Parliament in parts of 
the British dominions under the jurisdiction of the Admiral, excluding the 
ordinary colonial or Common Law courts. 4 

Whatever the classification of British views, legal or political, reflections 
of true international law or merely a British interpretation of that law; 
reflections of the law conceived by the British to bind and restrict the actions 
of all states on the basis of their sovereign equality, or conceived by the 
British to endow themselves with legislative and executive authority to 
declare and enforce rules in a way not permissible to other states; the British 



202 The Law of Piracy 

actions and justifications have been accepted by most European scholars as 
highly persuasive regarding the law and as views and state practices that 
cannot be disregarded, even if not fully determinative, in any analysis of the 
public international law relating to "piracy" in the nineteenth century. 

As noted above, 5 by 1819 the leading British Admiralty judge of the time, 
Sir William Scott, Lord Stowell, regarded "piracy" in the criminal law sense 
of "robbery within the jurisdiction of the Admiralty courts" as an 
anachronism, applying the word for the purposes of a property adjudication 
only. In another sense, to justify political action, the word was at that time in 
England gaining increasing currency. 

The transition from word of art in a property law and a criminal law 
context to a word used to justify merely political action in modern times 
seems to have begun in England with the series of statutes beginning in 1777 
by which American privateers were sought to be called "pirates," and no 
serious legal consequences flowed from that labeling. 6 In form, the statute of 
1777 recited that "acts of treason and piracy" had been committed upon the 
ships and goods of British subjects and that persons charged with "such 
treasons and felonies" had been taken into custody. It authorized their 
detention without bail, and forbade their being tried "without order from his 
Majesty's most honourable privy council. " In fact, nobody was executed as a 
"pirate" under this statute or its successors, and all prisoners were ultimately 
exchanged or released. 7 

In the United Kingdom as in the United States in the 1780s to 1820s 8 there 
were many rhetorical references to the Barbary states as "piratical." The 
legal meaning of these references was resolved in a series of cases all 
concluding that the Barbary states were "states" in the international legal 
order. 9 Nonetheless, in a series of incidents during the nineteenth century, 
Great Britain found itself for various political, economic, historical and 
cultural reasons needing legal labels to justify action short of war against 
foreigners interfering with British shipping. British military dominance of 
the seas, and the spreading notion that the forms of sovereignty that might be 
possessed by non-European societies (whether denominated "states" or not 
by European jurists and statesmen) should not be permitted to interfere with 
the natural law of property or trade, led to a further assumption by Great 
Britain of a legal authority to protect shipping lanes in general, thus third 
country shipping indirectly; eliminating the need for direct injury to a British 
flag vessel or national to justify military action. Such military action could 
then be seen either as an option of policy unfettered by the usual legal 
restraints on the decision to go to war both in municipal law and international 
law, or as a mere enforcement action by a "policeman" of the international 
order, or even by a "policeman" of the British legal order as it was extended 
to all seas for the purposes of securing universal "rights" to commerce as 
those "rights" were perceived by British lawmakers. This mixture of motives 



British 19th Century Practice 203 

and political, economic and legal rationales was covered by a revival of the 
label "piracy" as a basis for military action quite distinct from the municipal 
criminal law and Admiralty law property usages historically rooted in 
English law. 

In the international law classifications, the word "piracy" had by the 
mid-eighteenth century dropped out of serious usage. Christian Wolff, a 
prodigy born in 1679 in Breslau (now Wroclau, Poland) and making his career 
in the German principalities of the Holy Roman Empire, did not use the word. 
He concluded that "if any nation desires to restrain another from the use of 
navigating and fishing in the open sea, the latter nation has just [legal?] cause 
of war." 10 In 1758, Emmerich de Vattel, a Swiss jurist writing what was to 
prove the most popular treatise on international law of the first two or three 
decades of the nineteenth century, came to the same conclusion: "Since, then, 
the right of navigating and fishing on the high seas is common to all men, the 
Nation which undertakes to exclude another from that advantage does it an 
injury and gives just cause for war." 11 As has been seen, the first two wars of 
the United States, that with France in 1798-1800 and that with Tripoli in 
1802-1805, were naval wars with no declarations of war — rather a 
continuation through public action of the privateering engagements of the 
previous centuries that had been resorted to in place of a public "war." The 
distinction between a "just cause of war" and military action to enforce 
"rights" without the formalities of a legal status of "war" (but with all the 
legal results flowing regardless of formal "status") was nil by the turn of the 
nineteenth century in Europe, including the North Atlantic and Mediter- 
ranean. It is in this context that the shift in terminology from "war between 
states" (even without declarations) to "military action to suppress piracy" 
must be evaluated. 12 

"Pirates" as Permanent Enemies in British Imperial Law 

The Legal Rationale for Naval Action. It was noted above 13 that the 
British Foreign Minister at the European Conference of Aix-la-Chapelle in 
1818, Lord Castlereagh, had tried unsuccessfully to appeal to the analogy 
between "piracy" and the slave trade to justify British enforcement action at 
sea against slave traders of countries who had by their municipal law 
abolished the trade. His argument was based on the naturalist conception that 
if a law is common to the municipal orders of all civilized states, then that law 
reflects a natural law which exists independently of state boundaries. From 
this premise he argued that legal "standing" existed in all states to enforce the 
universal "law of nations;" thus that the British Navy could arrest and try a 
Portuguese or French slave trader not for violation of English law (which did 
not apply on a foreign ship on the high seas), or the law of the flag state (which 
the British had no legal power to enforce), but international law, of which the 
"law of nations" was conceived to be a part. 14 



204 The Law of Piracy 

As has been seen, this argument was rejected by France, Portugal and the 
leading British Admiralty judge of the time, Sir William Scott. 15 Although 
Castlereagh's approach was adopted by Justice Joseph Story in the United 
States, it was rejected by the Supreme Court under Chief Justice John 
Marshall, who felt the furthest the powers of a Court established by the 
American Constitution could extend in the absence of a link of territory or 
nationality to provide "standing," was to the acts of "stateless" "pirates" 16 
unless an Act of Congress required a broader reach by the Court, in which 
case the political dispute that was likely to result with other sovereigns 
protecting their own jurisdiction would best be handled by the political arms 
of government while the Court did what the Congress had directed it to do. It 
was then seen that the Congress never did direct the Court to act in a way that 
would raise the problem with a foreign sovereign; that in practice the United 
States restricted its jurisdictional claims to narrower limits than Story and 
other natural law theorists might assert. 

But the limits the courts might feel restricted the legal powers of their 
sovereigns, and the limits that legislators apparently felt it wise to adopt in 
passing legislation of general character, were not always the limits that active 
politicians would adopt in suggesting arguments to justify action against 
foreigners that was otherwise felt to be desirable. If Castlereagh could 
eliminate the slave trade on foreign vessels by analogizing that trade to 
"piracy" and then asserting universal policing jurisdiction over "piracy" as 
part of the jus gentium "law of nations," and the "law of nations" could be 
construed to be part of the law between sovereigns, jus inter gentes , in disregard 
of the distinction drawn by Zouche, 17 a rationale would have been achieved 
by which naval action could be released from the normal rules of "standing;" 
the British interpretation of British law, as part of the "law of nations," could 
become the basis for British action against foreigners abroad. Unless a 
particular foreign country chose as a matter of policy to deny the existence of 
the rule of substantive law on the basis of which the British acted, there would 
be no basis for diplomatic correspondence, no claims, and no problem arising 
out of the law of "standing." The British Navy would rule the seas as far as 
foreign individuals were concerned. The logic of this position must have 
seemed very attractive to British statesmen of the period immediately 
following the fall of Napoleon regardless of the underlying legal problems 
perceived by the courts, legislators, and foreign governments. 

The transition of the word "piracy" into the military/political vocabulary 
of British statesmen took at first a very odd form — the extension to "piracy" 
of legislation that had been aimed solely at encouraging the British Navy to 
fight Napoleon's warships. 

The Bounty Legislation of 1825 Retroactive to 1820. At the beginning of 
the nineteenth century, the distinction was small between commissioned 
vessels that were part of a permanent military force, a navy, on the one hand, 



British 19th Century Practice 205 

and private vessels commissioned to act for personal profit under letters of 
marque and reprisal subject to executive control in the issuance, cancellation 
and bonding procedures 18 on the other hand. 19 Since the destruction of enemy 
naval vessels did not lead to riches as capture of enemy merchant vessels did 
through Prize proceedings, and naval engagements with armed men of war 
involved human butchery of a sort that no sane person could voluntarily 
submit to without a large inducement in glory or money or both; and not 
enough men were mad enough to volunteer for it in the hope of glory alone, 20 
Parliament in 1803 introduced a substantial money inducement. The Act of 
1803 21 did not distinguish between navy vessels and privateers: 

XXXVII. . . . That there shall be paid by the treasurer of his Majesty's navy upon bills 
to be made forth by the commissioners of the navy . . . unto the officers, seamen, 
marines, soldiers and others, who shall have been actually on board any of his Majesty's 
ship or ships of war, or hired armed vessel or vessels, or of any privateer or privateers, at 
the actual taking, sinking, burning, or otherwise destroying any ship or ships of war or 
privateers belonging to the enemy . . . during the present war, five pounds for every man 
who was living on board any ship or vessel so taken, sunk, burnt, or otherwise destroyed, 
at the beginning of the attack or engagement between them . . . . 22 

This statute was superseded two years later but the language of this section 
was repeated verbatim in Section V of the new statute. 23 

With the end of the war against France and the War of 1812 against the 
United States, the main job of the British navy shifted to protection of the 
growing maritime commerce of the expanding Empire. While navy duty 
became less profitable, therefore, it also became less hazardous except where 
there was armed interference with British ships which it was the function of 
the navy to protect. Without reexamining the legal implications of the 
situation, this new (or revived) sort of armed interference was denominated 
"piracy" and in 1825 the head-money system was extended and vastly 
increased to cover it: 

That . . . there shall be paid by the Treasurer of His Majesty's Navy . . . unto the Officers, 
Seamen, Marines, Soldiers and others, who shall have been actually on board any of His 
Majesty's Ships or Vessels of War, or hired armed Ships, at the actual taking, sinking, 
burning or otherwise destroying of any Ship, Vessel or Boat, manned by Pirates or 
Persons engaged in Acts of Piracy . . . the Sum of Twenty Pounds for each and every such 
piratical Person, either taken and secured or killed during the Attack on such piratical 
Vessel, and the Sum of Five Pounds for each and every other Man of the Crew not taken 
or killed who shall have been alive on board such Pirate Vessel at the beginning of the 
Attack thereof. 24 

Another provision of the Act required the return of property in the possession 
of "pirates" to its former owners or proprietors after in rem proceedings in 
Admiralty, and on the payment by the owners of one eighth of the value of the 
property returned in lieu of salvage. 25 The bounty provision was made 
retroactive to engagements after 1 January 1820. 



206 The Law of Piracy 

The Act does not require any adjudication of the criminality of anybody, 
and seems to have merely continued the war-time legislation to cover acts 
against "pirates" as if the Latin phrase about "pirates" being "hostes humani 
generis" 26 were being read once again in a literal way to make of "pirates" 
persons to whom the laws of war applied, or at least those parts of the laws of 
war that were favorable to the British Navy. 

Action under this statute was a major part of British imperial activity from 
1825 to 1850 and the British seemed to assume they were legally at war with 
all who obstructed the expansion of British hegemony, both on the high seas 
and elsewhere. It is patently impossible to examine for legal and political 
implications all the instances in which "suppression of piracy" became the 
asserted basis for British naval action during that period, but a few instances 
and British adjudications illustrating the changing conceptions of "piracy" 
that are both evidenced by the Act and by actions under it are necessary. 
Thus, in the narrative and analysis that follows, it should be borne in mind 
that details regarding some Persian Gulf, Mediterranean and Southeast Asian 
practice is not the only evidence of the political use of the word "pirate" and 
its transition into the vocabulary of public international law with overtones 
of municipal criminal law and maritime property law. 

The New Law Applied 

The East India Company in the Persian Gulf. It is possible that a major 
reason for making the statute of 1825 retroactive to 1 January 1820 reflected 
British political activities in the Persian Gulf. In 1806 the British established 
formal relations with the Sheikh of the Qawasim, an Arab people in the 
Persian Gulf. In the more or less standard history of the area written a century 
later by a British scholar and published by the British Government of India 
this interest was said to be the result of the "increase of piracy and lawlessness 
at sea" in that area. 27 The formal relations were begun in a document in treaty 
form between the British East India Company and the Sheikh in which the 
word "pirate" or equivalent concept is not mentioned, nor is any 
"lawlessness" or any indication what "law" was conceived to apply in the 
area; the document is called an "Agreement" in the English translation. 28 

On 6 and 8 January 1820 the British produced some more documents in an 
attempt to stabilize the legal order of the Persian Gulf in a way that would 
protect their shipping interests. The one that was clearly intended to be the 
permanent commitment of the acceding Sheikhs to the relationships desired 
by the British was in Arabic called by the same word that in 1806 had been 
neutrally translated "Agreement." It was now translated "Contract." 29 The 
Arabic word, like the English word "agreement," has no particular legal 
implications. But the word "contract" in English implies the existence of a 
legal order and legal obligations; indeed, the word "contract" is usually used 
in English with regard to the municipal legal order and private relationships, 



British 19th Century Practice 207 

while the word "treaty" is usually used to label agreements between states 
that are binding in the international legal order. Historically, this distinction 
in implication between the words "contract" and "treaty" in English legal 
documents was not as sharp as it is today, and even today the usage is not 
entirely consistent. There seems to be no record of why the same Arabic word 
was translated officially into two English words with differing connotations. 
It is possible that a change in translators was all that was involved, except that 
the new translator in 1820 used the word "treaty" in another group of 
documents to be discussed below. It is probably incorrect to read excessive 
legal subtlety into the translations made of an Arabic word in the Persian Gulf 
by a British military officer in the employ of the East India Company in 1820, 
but it is some sign of the translator's conception of political, and thus legal, 
relationships between the Company as a creature of English law and the Arab 
Sheikhdoms as political societies with which the Company had to deal. If the 
Company were to deal with the Sheikhdoms as legally equal, then "contract" 
must have seemed an appropriate term even though it implied subordination 
of the Sheikhdoms to English law; just as the Company was wholly subject to 
English law regardless of its also being subject to international law when it 
acted for England abroad. But it is unclear whether the word "contract" in 
this context was consciously intended to imply the subordination of the 
Sheikhdoms to English municipal law as such, English municipal law in its 
Imperial Law phase using the language of international law, or true 
international law as it applies between equal sovereigns. 30 It is certain that 
British officials at this period were familiar with Roman "imperial law" as an 
aspect of Roman municipal law engulfing the "independent" societies of the 
Roman world in "treaty" relationships that were wholly governed by the 
interpretations of the Roman Senate and derived their legal force from 
Roman conceptions of the legal order. 31 

The "Contract" of 8 January 1820 is in treaty form. It provides: 

Article 1. There shall be a cessation of plunder and piracy, by land and sea, on the part of 
the Arabs, who are parties to the Contract, for ever. 

Article 2. If any individual of the people of the Arabs contracting, shall attack any that 
pass by land or sea, of any Nation whatsoever, in the way of plunder and piracy, and not 
of acknowledged war, he shall be accounted an enemy of all mankind, and shall be held 
to have forfeited both life and goods; and acknowledged war is that which is proclaimed, 
avowed, and ordered by Government against Government, and the killing of men and 
taking of goods, without proclamation, avowal, and the order of Government, is 
plunder and piracy .... 

Article 4. The pacificated Tribes shall all of them continue in their former relations, with 
the exception that they shall be at peace with the British Government, and shall not fight 
with each other . . . 



208 The Law of Piracy 

Article 7. If any tribe, or others, shall not desist from plunder and piracy, the friendly 
Arabs shall act against them according to their ability and circumstances, and an 
arrangement for this purpose shall take place between the friendly Arabs and the British 
at the time when such plunder and piracy shall occur. 

Article 8. The putting men to death after they have given up their arms is an act of piracy 
and not of acknowledged war . . . 

Article 9. The carrying off of slaves, men, women, or children from the coasts of Africa 
or elsewhere, and the transporting them in vessels, is plunder and piracy, and the 
friendly Arabs shall do nothing of this nature . . . 32 

Pending their acceding to this agreement, other Persian Gulf Sheikdoms 
agreed to various "preliminary treaties" at about the same time. 33 Five of 
these treaties concluded on 6, 8, 9, 15 January and 5 February 1820 have 
common articles under which the Arab Sheikhs agreed to surrender their 
boats to a British General except for pearl fishery and fishing boats, yield up 
"Indian prisoners" (presumably British Indian traders and Sepoy soldiers 
under British command), and accept peace terms with the British as 
"friendly" or "pacificated" Arabs. 34 One of the five, that with the 
representative of two Sheikhs of Bahrein on 5 February 1820, instead of 
mentioning the surrender of boats except for fisheries vessels, provides that 
"the sale of any commodities which have been procured by means of plunder 
and piracy," and the sale of supplies to "such persons as may be engaged in the 
practice of plunder and piracy" shall be forbidden by the Sheikhs in Bahrein 
or its dependencies, and that "if any of their people shall act contrary hereto, 
it shall be equivalent to an act of piracy on the part of such individuals." 35 

A sixth "preliminary treaty," with the Sheikh of "Aboo Dhebbee" on 11 
January 1820, does not address Indian prisoners (perhaps there were none) or 
fisheries, but seems to reflect an alliance in the struggle between the British 
and Abu Dhabi: 

Article 1. If in Aboo Dhebbee or any other of the places belonging to Sheikh Shahbout 
there are any of the vessels of the piratical powers which have been attached or may be 
hereafter attached by the General during the present war against the pirates, he 
[presumably the Sheikh] shall deliver such vessels to the General. 36 

As noted above, it is unclear precisely what the implications were of the 
word for "treaty" and "contract" actually used in the Arabic texts, which 
were the only texts the Sheikhs could read or have read to them with 
understanding. Without more analysis than available documents make 
possible at this time, it is wise to be cautious about far-reaching implications 
from inferential evidence. But some implications can be drawn. 

The British dominated the negotiation and controlled the translations 
between English and Arabic. Evidence of this can be garnered from the 
documents themselves. For example, the seal of Captain J. P. Thompson, 17th 
Light Dragoons "and interpreter," appears in the place of the seal of Hussun 



British 19th Century Practice 209 

(sic; Hassun?) bin Ali, Sheikh of Zyah with an explanation: "The seal is 
Captain Thompson's, as Sheikh Hassun bin Ali had not a seal at the time of 
signature." 37 

In only two of the "preliminary treaties" is "piracy" mentioned. The 
treaty with Bahrein analogizes dealings with those who practice "plunder 
and piracy" as "equivalent to an act of piracy." There is no definition of 
"piracy" and no direct statement of the legal result of the label as used. It is, of 
course, possible to speculate with some assurance that the word was being 
used in a political sense implying a British intention to suppress by force 
whatever the British determined unilaterally to be "piracy," and whether on 
land or sea, and without any criminal or Admiralty proceedings in any court. 
But evidence to support that speculation rests on more or less contempo- 
raneous British actions and language elsewhere, which will be discussed 
below. 

More directly pertinent at this point is the distinction drawn between 
"piracy" and "acknowledged war" in the "contract," and the clear 
implication that there is no intermediate status between the two. Thus, 
political motivation, the absence of the animo furandi required in British 
municipal law before a criminal conviction of "piracy" could be obtained 
before a Commission set up under the statute of 1536, was dropped from the 
conception of "piracy" as a basis for military action. It fits the facts equally 
well to regard the conception of "piracy" in this period as reflecting British 
perceptions of true international law, British Imperial law as a branch of 
British municipal law, or simply the unilateral assertion of a special set of 
rules of law to govern British relations with Arab societies whether or not 
part of general international law or some concept of British hegemony, or 
even some disguised assertion of British dominion in the Persian Gulf 
equivalent to the imperium exercised at sea although not overtly claimed as 
such after 1801. 38 

While it is easy to imagine the British attitudes towards the "freedom of 
navigation" on the "high seas" in the early nineteenth century, and the 
British role as trustee for world commerce, or proprietor of the commercial 
world's "rights" against those who saw no natural law underpinning to 
foreigners' asserted rights of trade and property, it is impossible to put those 
feelings into legal terms acceptable to all and conformable to all statements of 
judges and statesmen of the time. It is this impossibility of positing a legal 
system capable of explaining the British actions and British rhetoric at the 
same time that makes it best to treat the situation as fundamentally a matter 
not of natural law, but of policy. Moreover, to the degree that positive law 
arguments were posed against British actions, as at the Congress of Aix-la- 
Chapelle in 1818, 39 the British arguments lost. It was only where confronting 
societies at that time unable to frame their objections to British assertions of 
"law" in terms of the Westphalian "constitution" of international society, or 



210 The Law of Piracy 

too weak to make those arguments heard against British military opposition, 
that the British felt free to impose their views. 

Another, rather more subtle, approach supports the contention that the 
British, in using the word "piracy," were applying a British municipal law 
conception; not the British municipal law of crimes within the jurisdiction of 
the British Admiralty courts (although there remain overtones of that), but of 
British unwritten constitutional law under which enforcement of some 
"British Imperial law" was given to the navy by direct action rather than to 
the British judiciary. That is in the distinction between British action by the 
officials of the East India Company on the one hand, and British action by the 
Royal Navy on the other. The Persian Gulf transactions were entered into on 
the British side not by the diplomatic representatives of the government in 
London, but by the military and administrative representatives of a mere 
Chartered British Company. 40 The history of the Company and its 
relationship to the Crown, the Parliament and the Courts of England is 
beyond the scope of this study. 41 But it seems clear that major political and 
legal results flowed from the distinction between the Company (and other 
European Companies of equivalent status, such as the United Dutch East 
India Company) and the home Government as the party concluding treaties 
(or "contracts") with non-European governments. 42 

Among the pertinent legal and political results was the placing in the hands 
of the representatives of a military arm of a body organized under the law of 
England for commerce, and which had not wholly lost its commercial 
functions or traditions, responsibility for keeping open the sea lanes for that 
commerce. The temptation to regard any political action by others that 
obstructed the course of commerce as "illegal," or at least within the legal 
powers of the Company officials to suppress, must have been enormous even 
if unconscious. In view of the use of the word "piracy" in England to bring 
about the legal results of treason in the 1690's, and the continuance of the 
statute of 1700, 43 although clearly it was not applicable to foreign commerce 
raiders in foreign waters, it is not surprising that the word "piracy" was felt 
to have broader legal meanings than the strictly historical one in English law 
relating to robbery within the jurisdiction of the Admiral. 

An example of the spreading use of the word is implicit in the distinction 
between the "preliminary treaties" and "contract" referring to "plunder and 
piracy" as if something done by the ill-disciplined subjects of the various 
"pacificated" Arab Sheikhs, and the status of the Sheikhs themselves. In the 
treaty with Abu Dhabi there are references to "vessels of the piratical 
powers" and the "present war against the pirates," implying that those 
Sheikhs who did not come into treaty relations with the British were 
themselves mere leaders of "pirate" bands. How there could be a "war" 
against them when, in the "contract," it was asserted that a key legal 
distinction existed between "piracy" and "war," is totally unclear. It might 



British 19th Century Practice 211 

be cynical, but still accurate in the light of this usage, to conclude that the 
British Company's officials wanted the privileges of "war" themselves in the 
struggles with the Arab Sheikhdoms and their military arms and unruly 
merchants, but also wanted to deny the legal status of prisoners of war and 
belligerent rights of search and seizure to those Arabs. The language is 
reminiscent of the Roman conception of permanent war with "pirata" who 
opposed the establishment of Roman hegemony in the Eastern Mediter- 
ranean, 44 and it can be suggested in light of the remarks of Sir T.S. Raffles 45 
that this coincidence is not accidental. 

The British Navy in the Eastern Mediterranean Sea. Events in the 
Mediterranean confirm this analysis. In January 1813, the British Foreign 
Minister, Lord Castlereagh, sent William a Court as Envoy Extraordinary 
and Minister Plenipotentiary on a "Special Mission to the Several Powers on 
the Coast of Barbary . . . [to place] on a more permanent and satisfactory 
footing the Relations between This Court [Great Britain], and the Respective 
Sovereign States on that Coast." 46 Court was made subordinate to the 
Principal Secretary of State for War, not for Foreign Affairs, although the 
language of his instructions refers to the Barbary Coast societies as "States. " 47 
It may be remembered that until this time, the British had maintained 
relations for the previous 200 years with the rules of Algiers, Sallee, Tripoli 
and Tunis on a consular level and had considered those societies to be "states" 
capable through their own legal proceedings of changing title to vessels and 
goods. 48 At the same time, in the complex history of the Barbary "states," a 
constitutional relationship to the Ottoman Emperor was maintained by the 
Barbary rulers. 

While it might frequently have been in the Barbary rulers' interest to deny 
that subordination from time to time, it was undoubtedly in their interest at 
other times to emphasize it. 49 For example, as late as 27 September 1819 the 
Dey of Tunis used the technical Ottoman legal position in the constitution of 
Tunis as a basis for refusing to yield to European pressure seeking to get the 
Tunisians to disarm their ships and pursue peaceful trade only (i.e., to allow 
the Europeans to sail freely through waters historically claimed as within the 
taxing jurisdiction of Tunis): "If a War should break out between any Power 
and the Ottoman Porte, what shall We answer if she requires Us to arm Our 
Vessels to assist her, as has always been the practice . . . ?" 50 

Court's mission failed. In 1818, at Aix-la-Chapelle, the "allied Powers" 
who had defeated and occupied Napoleon's France agreed to send an 
international commission to repeat the British effort. It too failed. 51 

Meantime, in 1816 Great Britain had sent Lord Exmouth with a military 
expedition to Algiers to secure the Dey's agreement to new constitutional 
arrangements with regard to some islands populated by ethnic Greeks, for 
several centuries in the past part of the Ottoman Empire. The British sought 
to establish a "protectorate" in the "Ionian Islands," and had achieved the 



212 The Law of Piracy 

agreement of their European allies in this endeavor at the Congress of 
Vienna. 52 In a sense, Exmouth's expedition, which involved the bombardment 
of Algiers, was too successful in that the Dey not only agreed to the new status 
of the Ionian Islands, but also agreed to end "Christian slavery" in Algiers. 
Ironically, the British position then, agreed to by the Dey, was that the law of 
war should be applied with regard to Europeans taken by the privateers of 
Algiers, who were thenceforth to "be treated ... as Prisoners of War, until 
regularly exchanged according to European practice . . . " 53 

Thus, in 1816, it was clearly the British position that Algiers was a state in 
the international community capable of participating in the legal order of 
Europe with regard to "war;" that it was not a mere "piratical" community. 
The legal position adopted by British Admiralty courts 54 had thus been 
translated to the area of public international law as a reflection of high policy. 

France was unhappy with the continued independence of the Barbary states 
as full members of the international community as defined by the public law 
of Europe and, in 1827 instituted a blockade of Algiers, finally capturing the 
city in accordance with the European conceptions of the law of war on 5 July 
1830. 55 Except in polemical writings in Europe, the Barbary states throughout 
the period were not treated as "piratical," but as "states." 

The political pressures to find a rationale for naval activity against those 
who, for whatever reason, interfered with British merchant shipping in the 
Mediterranean Sea reached something of a pitch in the early 1820s, at about 
the same time the British East India Company forces in the Persian Gulf began 
to use the word "piracy" in connection with the activities of the Arab 
Sheikhdoms there and the market in Bahrein. The parts of the Ottoman 
Empire populated by ethnic Greeks had begun to assert a degree of 
independence inconsistent with continued Turkish rule already in the second 
decade of the nineteenth century and a "Protectorate " by Great Britain of the 
"Ionian Islands" was established while unrest in the rest of the ethnic Greek 
area increased. The Senate of the Ionian Islands on 7 June 1821 proclaimed the 
"neutrality" of the Protectorate of the Ionian Islands in that struggle. 56 The 
British High Commissioner in the Ionian Islands, Sir Frederick Adams, issued 
a series of declarations between April and October of that year committing 
the Ionian Islands as a political body to "non-interference. " 57 On 30 June 1821 
Lord Bathurst, the British Colonial Secretary, instructed Sir Frederick 
"against adopting any proceeding which can be construed as a violation of 
that strict Neutrality which His Majesty has determined to observe . . . " 58 and 
a formal Proclamation of Neutrality for the Ionian Islands was issued by the 
High Commissioner on 7 October 1821. 59 Interestingly, there is no record of 
any equivalent formal British announcement near this time although internal 
British documents imply it. 60 

Meantime, on 22 September 1821 a British firm had asked the Government 
if it could sell arms to the Pasha of Egypt to defend one of his ships from attack 



British 19th Century Practice 213 

by rebels against Ottoman rule. 61 Lord Liverpool, the Prime Minister, 62 
replied that the arms could also be used for attack, thus their sale would be 
unwise in the view of the British Government, but he did not forbid it. 63 
Apparently the question and the situation in the Ionian Islands Protectorate 
produced a flurry of interest in the Cabinet; Dr. Christopher Robinson was 
asked for a legal opinion about whether Greek insurgents operating at sea in 
the Eastern Mediterranean should be regarded by the British as "pirates. " His 
opinion was delivered on 4 October 1821: 

[I]t would not be proper to consider Persons as Pirates who may be cruizing under a state 
of alleged Hostilities, whether regular or irregular, provided their Intentions were in 
fact satisfactorily distinguished from the mere predatory character of Piracy as 
considered in Law. . . . [But since there is no regular Greek government or public law in 
the area] I think it would be consistent with the Neutrality or forbearance that His 
Majesty's Government might be disposed to use and practice under existing 
Circumstances to instruct His Majesty's Cruizers to interpose by all amicable [sicl] 
means, to protect the Ships of His Majesty's Subjects, or of the Ionian Islands under His 
Majesty's protection, from being treated by such Cruizers as liable to all the restrictions 
to which Neutral Commerce is required to submit in a state of War, between regular 
and recognized Governments. — It may be a matter of discretion, on what Occasions and 
to what extent this interposition should be authorized; But ... a reasonable limitation 
of the arbitrary pretensions of such Cruizers, would be justified, and may perhaps be 
found to be expedient for the protection of British Commerce in the Mediterranean. 64 

Two aspects of this opinion seem noteworthy; (1) as a matter of standing, it 
applies only to the protection of British commerce and does not relate at all to 
the protection of Egyptian or other vessels; and (2) the classification "pirate" 
seems to reflect English municipal criminal law conceptions and a continued 
reluctance to intervene in the internal affairs of any other country by 
questioning its licenses or even its very existence when the fact pattern 
clearly involved public action by foreigners for political ends. Nonetheless, 
the possibility was opened that as a matter of policy the British government 
could intervene without violating public international law. The choice as to 
whether to accord belligerent rights to the Greek irregular vessels was to be a 
matter of policy only, and there is an implication that if a state of war was, for 
political reasons, not recognized, or the legal capacity of the Greeks to license 
privateers was not accepted, there would be no legal obstacle to British 
intervention to suppress "piracy." 

The British officials in London were apparently considering the options 
open to "positivist" jurists: Whether the struggle between the Greek 
"National Assembly" and the Government of Turkey was to be regarded as 
belligerency in which both parties assumed symmetrical legal rights and 
obligations and the British were "neutral," or the Greek vessels under 
National Assembly license could be legally suppressed as "pirates" consistent 
with British interest in the area; indeed, whether the law of "piracy" 
required that suppression by "neutral" powers. Robinson's answer was that 



214 The Law of Piracy 

the labeling system to be adopted was a matter of policy, not law, and that the 
international law regarding "piracy" did not require British suppressive 
action against Greek insurgents. 

A further, and more serious implication of this opinion exists when it is 
read as part of a broader context. The Greek "National Assembly" declared 
the independence of Greece from Ottoman rule on 13 January 1822, 65 and on 
25 March of that year the new "Provisional Government" of Greece declared 
a "blockade" of some Turkish ports. 66 The British Government seems to have 
considered Great Britain "neutral" as if "belligerency" were the correct 
legal status of relations between the Greek authorities and the Turkish 
Government. By 30 April 1822 the British authorities were accepting as 
legitimate the captures of neutral merchant vessels by privateers licensed by 
Greek authorities pursuant to the blockade declaration of 25 March. 
Merchant ships of the Ionian Islands themselves were not protected by the 
British Navy. 67 

Early the next year, Dr. Stephen Lushington was formally asked whether 
the insurgents had a belligerent right to institute a legal blockade effective 
against British neutral merchants, and rendered two opinions dated 29 May 
and 26 June 1823. In the first he advised the Government that the Greek 
authorities, although unrecognized, and the state of war being unrecognized 
by the British government, nonetheless had the equivalent of belligerent 
rights. Lushington had grave difficulties meshing this naturalist conclusion, in 
which the law flowed from the facts in disregard o( the labels given or 
withheld for policy reasons by the political branch of the British Government, 
with the positivist orientation of his clients (the Government) and his own 
inclinations. The legal tactics of the Greek privateers were ingenious: 

[OJoccasionally to blockade the entrance to a port and when driven away by the 
absolute appearance of a superior Turkish force . . . they quit that part of the Turkish 
coast, and proceed off another port, where a similar conduct is pursued, so that it is 
impossible for the British owner when he dispatches his vessel to know whether upon 
her arrival at the port of destination, such port may be blockaded or not. 68 

In the absence of formal notification and effectiveness maintained throughout 
the period subject to notification of the legal "blockade," the blockade would 
not be regarded as legal in a British Admiralty court. Nonetheless, 
Lushington pointed out, it is regarded as legal in Greek courts. He concluded 
that the British should "compel the Greeks to observe towards British 
subjects the usages of legitimate warfare." 69 As to the status of the Greek 
privateers and Greek courts themselves, Lushington divided the British 
position into a recognition de facto but not de jure of the independence of the 
Greek nation from Turkey, finding precedent in the British attitude towards 
the former Spanish colonies in the Western Hemisphere. From this, he argued 
that a blockade properly proclaimed and maintained by Greek forces would 
be the exercise of belligerent rights justifying Greek confiscation of the 



British 19th Century Practice 215 

property and perhaps even imprisonment of the crew of British blockade- 
runners. 70 He thus found himself in the same position that Gentili had 
discovered more than two hundred years earlier and that the United States 
was discovering at the same time (only to forget it in the emotion of the Civil 
War in 1861): policy-makers cannot change the real world by manipulating 
the labels. As Lushington wrote: "To apply the strict principles of the Law of 
Nations to a state of things so anomalous [apparently meaning a state of 
reality out of step with the legal labels affixed by policy-makers seeking to 
use the Law of Nations to justify policy in disregard of reality], would, I 
apprehend, tend only to mislead the parties interested, for these questions are 
always mixed up with political considerations, and the practice will in some 
degree differ from the theory." 71 

Shortly after this opinion was rendered, on 6 June 1823 the Foreign Office 
issued a general proclamation of British "neutrality" in all "hostilities . . . 
between different states and countries in Europe and America" 72 and, 
without mentioning British "neutrality" expressly, another proclamation 
was made by the Foreign Office on 21 June 1823 that the British Government 
"will treat the warfare between the Turks and the Greeks as legitimate 
warfare." 73 In his opinion dated 26 June 1823, Lushington interpreted this 
proclamation to be the positivist document finally meshing the world of law 
with reality as a matter of British policy, and considered the rights and 
obligations of British merchants in the Eastern Mediterranean as subject to 
the law of neutrality under the Law of Nations as it might be applied in Greek 
and Turkish Prize courts. He thus confirmed his earlier opinion, but on the 
basis of law rather than policy in the mere guise of law. 

Just a few days later, on 12 July 1823, the Foreign Minister, Lord Canning, 
told the British Ambassador in Constantinople, Lord Strangford, that the 
"blockade" had degenerated in some instances to lawless violence and 
plunder, mentioning several examples of British remonstrances given 
diplomatically to the Turkish Government on the ground of humanitarian 
concern, and indicating that a British rescue of "wretched survivors" of a 
defeated Turkish garrison at Napoli di Romani might have been an 
"interference [of which] according to the strict laws of Neutrality, the 
Greeks might, in their turn, have complained." 74 

Things limped along with the British becoming more and more involved 
in the politics of the Ionian Islands, the Greek rebellion, and British trading 
interests, attempting to apply the law of war to the situation. This approach 
was condemned by Prince Metternich of Austria-Hungary, who believed 
that rebellion was illegal; a violation of the natural law under which states 
were created and governed by inherited authority deriving from history 
and God. 75 

On 31 December 1824 Canning instructed Sir Henry Wellesley, the British 
Ambassador in Vienna, how to respond to Metternich: 



216 The Law of Piracy 

The doctrine of Prince Metternich, that the Greeks, as rebels [sic], are not entitled to the 
same rights of war, as legitimate belligerents, is one, of which, we think His Highness 
would do well to weigh all the consequences, before he promulgates it to the 
world .... [W]e think it for the interest of humanity to compel all [sic] belligerents to 
observe the usages by which the spirit of civilization has mitigated the practice of War. 76 

The word "piracy" and its legal results at English law were injected into 
the politics of the Greek rebellion by the Royal Navy. The Navy's problem 
was how to protect British shipping and perhaps other neutral shipping, 
including the shipping of the Ionian Islands, from the depredations described 
by Sir Stephen Lushington; the abuse of the law of blockade by Greek 
privateers. Indeed, there was a trend of British naval thought that objected in 
principle to privateering. Lord Nelson himself in 1801 had written: 

Respecting privateers, I own that I am decidedly of the opinion that with few exceptions 
they are a disgrace to our country; and it would be truly honourable never to permit 
them after this war. Such horrible robberies have been committed by them in all parts of 
the world, that it is really a disgrace to the country which tolerates them. 77 

It was apparently but a short step for British naval officers, encouraged by 
the Bounty Act of 1825 78 to begin referring as "pirates" to those who 
interfered with commerce protected by the Royal Navy. The "Agreements" 
negotiated by the military arm of the East India Company with the Persian 
Gulf Sheikhs indicate that the transition in language from a loose vernacular 
reference to the Barbary states as "pirates" had already occurred by 1820 in 
international documents of legal importance. That this development was not 
accidental is indicated indirectly by the fact that the documents concluded in 
the Persian Gulf were not in fact published in England outside the East India 
Company until about the time Parliament enacted the Bounty Act in 1825, 
when the "Contract" (but not the Preliminary Treaties or the 1806 
Agreement with the Qawasim) was published in Parliamentary Papers. 79 It 
thus appears that the bounty of twenty pounds per "pirate " killed or captured 
and five pounds per escaping "pirate " on board a vessel attacked by the Navy 
had begun to be paid with regard to actions in that area against vessels 
classified as "piratical" by British municipal authorities only (the Treasurer 
of the Navy on receipt of certification by a British Naval Commission). 80 

The enthusiasm with which British naval forces chased down unlicensed 
Greek privateers led local Greek authorities to demand "licenses" from the 
Greek Provisional Government as a condition of their support. The situation 
is succinctly summarized by Captain G.W. Hamilton of H. M.S. Cambrian in a 
report to Vice Admiral Sir Barry Neale, Bart., the Commander-in Chief of 
the British Naval Forces in the area on 4 March 1827: 

[SJeveral pirate vessels have been destroyed . . . yet piracy evidently increases. The 
Greek people are starving, and I have no doubt that the opposition of the Naval Islands to 
the present [Greek Provisional] Goverment is principally occasioned by their refusing to 
sanction cruising. 81 



British 19th Century Practice 217 

Indeed, in the absence of a license by the authorities impliedly "recognized" 
by the British as legally empowered to grant it, local Greek authorities seem 
to have granted their own licenses, whose legal effect was denied by the 
British regardless of the public purpose and local official support given the 
"pirates." At one point Commander Charles Leonard Irby of H. M.S. Pelican 
wrote to the Ruling Council ("Ephori") of Sparta threatening direct political 
action: 

Ephori, — If you fail to deliver into my hands the persons of the two pirates Nicolo Suitto 
and Nicolo Coccocci, I will intercept all vessels coming to you with provisions, and on 
this account I have already detained an Imperial [Turkish] trabaccolo. 82 

In this particular incident, one of the Ephori finally appeared to the British 
Commander, denied that there were any "pirates" protected by the Spartan 
authorities, and the matter was smoothed over without any delivery of 
anybody. 83 

Under pressure from the local Greek authorities, the Provisional 
Government did in fact begin to issue licenses to Greek privateers, who 
exercised the belligerent right of search and seizure of contraband on neutral 
vessels against British, French and Austrian ships. The British regarded those 
captures as illegal, but whether because the goods taken were not considered 
properly "enemy" (Turkish) property, or neutral "contraband" or because 
denying the belligerent right of search and seizure in the absence of blockade 
is not clear. 84 

One reason for the British frustration with the ways of the law, thus a 
reason for using the term "pirate" to cover military action regardless of nice 
legal definitions, was the difficulty of obtaining convictions on a criminal 
charge of "piracy" before any court. In the one known case in which the 
captain and crew of a Greek privateer were haled before a British court in 
Malta, the result was an acquittal: 

The evidence for the prosecution was weak very much owing to the absence of Capt. 
Curtis [the British captor] — Capt. Lazzaro Mussu . . . maintained that the Themistocles 
was a regular Greek man-of-war. 85 

The British apparently felt the law an obstacle to action: 

The more I see of these trials the more I see that a jury and our Piracy Court can do 
nothing likely to put a stop to the activity of the Greeks in plundering every vessel they 
meet with, calling all cargo Turkish property. — It was a fatal step allowing Greeks 
anything like the right of searching vessels under neutral flags. 86 

Things reached something of a crisis stage as far as the British were 
concerned in October 1827. Under demands by Admiral Codrington, the 
Greek Provisional Government reported that it "has taken the necessary 
measures to stop the cruising, and does not issue any more papers for 
cruising. " 87 Within two weeks Admiral Codrington in frustration at what he 
regarded as the faithlessness of the Greek authorities wrote to "The President 
and Members of the Legislative Body of the Greek Nation:" 



218 The Law of Piracy 

The conduct of the Provisional Government of Greece . . . has been so unjust and so 
injurious to the commerce of the Allied Powers, and they have so entirely falsified, the 
promises they made to me, that I shall decline writing to them henceforth. 88 

Finally, the British authorities in London issued an Order-in-Council 
instructing His Majesty's Naval Forces in the Mediterranean: 

[T]o seize and send into some port belonging to (or under the protection of) His Majesty, 
every armed vessel which they shall meet with at sea under the Greek flag . . . such 
ships-of-war only excepted as are belonging to, or under the orders of, the persons 
exercising the powers of Government in Greece. . . . 89 

Whether this was intended to stop privateering and require the Greek 
authorities to establish a formal naval arm, or merely to require some 
regularity in the form of licensing and allow claims to be brought directly to 
the Greek authorities for abuses of the licenses is not clear. In any case, the 
absurdity of the British actually trying to police the seas with regard to Greek 
activities against the Ottoman Empire, while at the same time diplomatically 
supporting the efforts of the Greek authorities to achieve their independence 
of Turkish rule, was clear. The ultimate answer was simply to attack as 
"pirates" all the privateers whom the British sought to suppress, while 
arguing that the Greek Provisional Government retained all the belligerent 
rights that the facts justified as a matter of international law. 

On 1 February 1828 Commodore Sir Thomas Staines reported to Admiral 
Codrington that he had entered the harbor of Grabusa and, against no 
military opposition at all, commenced firing; that the Greek garrison did not 
return fire and eleven "piratical vessels" were destroyed or captured. 90 The 
Greek authorities denied British rights to do what Staines had done and 
demanded that "pirates" be tried according to Greek or international law, 
implying that in their view the suppression of "piracy " was not a valid basis 
for political action; that "piracy" was a legal term with legal consequences 
that were being ignored by the British. Captain William B. Parker discussed 
the Grabusa action with the Greek "President" (of the Legislative Body of 
the Greek Nation — the body treated by Codrington as the Government of 
Greece) pressing the British view that the British had jurisdiction to police 
the seas against "pirates" and arguing that the Greek authorities were bound 
by British views as expressing international law. In his report to Admiral 
Codrington he indicated that he had spoken of the "necessity of delivering up 
all the plundered goods . . . and four notorious pirates" to the British 
authorities, "with a view to their [the pirates] being sent to Malta for trial." 
The response of the Greek "President" to this demand, as reported by Parker, 
sets out the legal position that any independent state would have assumed at 
that time (or today): 

His Excellency cannot consent to order the arrest of those individuals for trial at Malta, 
on the principle that such conduct would be contrary to the laws and customs of civilized 
nations, and render him the mere shadow of that authority, in which the Allied Powers 






British 19th Century Practice 219 

are disposed to support him, in order to establish a regular Government; but he most 
readily gives orders for their arrest and to be conveyed here [the seat of the Greek 
Government], and tried by the strictest tribunal he can appoint in Greece, leaving to the 
English the selection of the [Greek] judges if they wish it. 91 

The "plunder" was promised to be restored to its rightful owners by the 
Greek authorities. 92 He thus appears to have conceded that unlicensed 
depredations were a violation of Greek law and possibly of international law, 
but that to treat them as violations of British law alone, as would be implied 
by removing the accused "pirates" to Malta for trial, would be in effect to 
deny that Greece was an independent country. His emotions and underlying 
convictions seem identical to those of Attorney General Charles Lee in 1798, 
refusing to accept a British request for extradition of accused "murderers" 
under the terms of the Jay Treaty; not on the ground that the British lacked 
jurisdiction in a case in which both parties had jurisdiction by traditional legal 
rules, but on the ground that it was inconsistent with the "justice, honor and 
dignity of the United States" to hand over to another for trial, persons who 
are amenable to the jurisdiction of American courts. 93 But where Lee rested 
his argument primarily on the competence of American courts under the 
authority of the American Constitution and did not consider the overall 
question of the power of the United States at international law to erect courts 
with a competence to hear foreign cases, the President of the Greek 
Legislative Body rested his argument on the more fundamental basis assumed 
by Lee: That as officials of an independent country the competence of Greek 
authorities to try Greek nationals for "piracy" or any other crime under 
Greek or international law could not be questioned, even if Greece had to 
erect special new tribunals to hear the cases. 

As to the source of law to be applied by the Greek tribunal, the Greek 
"President" took an approach that seems analogous to that taken by Justice 
Story as a District Court judge in 1834, 94 asserting the propriety of the United 
States taking jurisdiction over a foreigner committing "piracy" on the high 
seas after the British authorities had voluntarily sent the culprit to the United 
States for trial. Story's dicta, asserting no limit to American jurisdiction in 
"piracy" cases occurring in the avenues of commerce where all states had 
"territorial" jurisdiction, were necessary to maintain his own naturalist 
definition of the widest extension of national jurisdiction to prescribe 
criminal laws to protect commercial sea lanes against the depredations of 
foreigners. Those dicta were unnecessary in a case in which American 
jurisdiction to enforce the American prescriptions could be grounded on the 
nationality of the victim and thus not require acceptance of Story's 
conceptual framework of universality. Here the Greek authorities already 
had jurisdiction to prescribe based on the nationality of the accused, and 
jurisdiction to enforce based on their custody of the four "pirates. " Thus, the 
dicta of Story were again unnecessary to maintain the Greek position, and the 



220 The Law of Piracy 

British authorities seem to have yielded not to convenience, as in the Pedro 
Gilbert case, but to legal argument. And the legal argument was not the 
extensive natural law argument of Story, but the simple assertion of 
jurisdiction based on nationality as an attribute of statehood which, for 
policy reasons on policy, positivist, grounds, the British were bound to 
support. 

From this point of view, the transactions in the Greek War of Independence 
in the 1820s seem an assertion of British Imperial law defining "piracy" as a 
basis for political action, rejected by Greece when legal results in the 
international legal order were sought to be derived from the British label, 
except so far as appropriate to maintain the framework of national action to 
apprehend and try their own nationals accused of "robbery within the 
jurisdiction of the Admiral" of any country's government, that is, outside the 
land-based territorial jurisdiction of any other state. The ancient extension of 
that jurisdiction to include prescriptions over foreigners whose victims were 
nationals of the country exercising enforcement jurisdiction was maintained, 
but as at best a concurrent jurisdiction, under which many states with a legal 
basis for enforcement of their own prescriptions could among themselves 
choose the most convenient; but no single state's jurisdiction could claim 
priority over the jurisdiction of the state with actual custody and prescriptive 
jurisdiction based on nationality of the accused or his victim or the victim's 
vessel's flag. The British attempt to assert a general supervisory jurisdiction 
over the seas succeeded only when diplomatic correspondence was avoided. 

Diplomatic correspondence could most easily be avoided in dealings with 
non-European societies and with unrecognized rebels. Let us turn now to 
British dealings with those actors. 

The East India Company, the Navy and the Courts in Southeast Asia 

Politics and "Piracy" in Southeast Asia. The word "piracy " was first used by 
the English 95 in connection with affairs in Southeast Asia in the loose 
vernacular of 1608 to refer to possibly politically organized sea-borne 
Malayan soldiers taking part with the Dutch in their unsuccessful attack on 
Portuguese Malacca. 96 The word was used in 1717 by William Dampier to 
refer to Malays who interfered with shipping in the Straits of Malacca in 
1689. 97 In both these early usages there is no hint of legal connotations except 
for Dampier's idea that the "piracies" were probably caused by the policies of 
the Dutch interfering with the profitable flow of Malayan trade; thus, that 
the "piracies," if illegal, were violations of Dutch assertions of doubtful 
rights to intercept Malayan trade, or violations of an underlying international 
law which the Dutch were also violating except to the degree that their 
trading regulations were agreed to by treaty with Malayan governments 
legally empowered to commit their merchant populations. The Dutch 
considered all disregard of their treaty-based trade restrictions in the area as 
"piracy," even if no depredations against any shipping were ordered, and 



British 19th Century Practice 221 

even if undertaken by the acknowledged Sultans of recognized Malayan 
communities. 98 

In 1808 the chief British official in Malacca seized a ship flying the flag of 
Achin, a northern Sumatra Malayan sultanate with important political and 
financial backing from Arab traders, claiming it to be Danish and lawful prize 
during the Napoleonic Wars. The Achinese authorities in retaliation seized a 
British ship and a Malayan ship from the British colony of Prince of Wales' 
Island (Penang), ostensibly under Achinese law in Achin waters. Those 
seizures were called "piracies" by the Penang officials." In 1813 the Sultan of 
Achin condemned an Indian ship violating his blockade orders during a 
revolution in Achin. This seizure was also denominated "piracy" by the 
Penang officials. 100 The vessel was recaptured on the orders of those officials 
and returned to its owners. The British East India Company government in 
India, called "The Supreme Government" in contemporary British docu- 
ments, agreed that the word "piracy" in some sense fitted the acts of the 
recognized Achin Government: 

[T]he right of the King of Acheen to regulate the Trade of the Country actually under 
his authority cannot be disputed, but his pretensions . . . with respect to Countries which 
are only nominally a part of his dominions cannot be admitted. . . . [T]he seizure by the 
King of Acheen of Vessels trading to those countries on the pretence of it being a 
violation of the laws of his Kingdom is little short of piracy. 101 

The British authorities in Penang then authorized a local Arab merchant to 
fit out five ships flying British colors and with some British subjects taking 
part to fight against the Sultan's forces as if suppressing "piracy. " 102 An Arab 
merchant fighting to have his son installed as Sultan in Achin then seized some 
of the defending Sultan's vessels in which British merchants appear to have 
had an interest, and in 1816 was himself actually jailed in Penang on a charge 
of "piracy" until political pressures from the Muslim community in that 
colony brought about his release without trial. 103 

The same Penang British authorities in January 1816 wrote to the Sultan of 
"Quedah" (Kedah), the Malay Sultan in the Peninsula opposite Penang, to 
reassure him regarding a threat from the "King of Siack" (Siak) in Sumatra to 
attack Perak, the Sultanate just South of Kedah in the Malay Peninsula: 

I am very sorry to hear of the design entertained by the Siack chiefs against Perak; for 
although not so intimately connected with that country as with Quedah, I feel interested 
in all our neighbours, and I should desire by all means in my power to promote their 
prosperity. . . . [T]hough not bound by treaty to protect Perak from invasion by sea, as 
in the case with Quedah [sic], I shall treat as pirates any whom I find waging hostility so near 
to this island as any part of the Perak territory. 104 

At the same time, in writing to the Sultan of Siak, Governor Petrie of 
Penang did not refer to "piracy" at all, but, in the paraphrase by the only 
available source, wrote that he would consider "all abettors of such 
proceedings as enemies of the British Government." 105 So far as is known, 



222 The Law of Piracy 

Siak called off its raid, and no British action was taken either to suppress 
"piracy" or to fight on any other legal basis against Siak. 

The need to find a legal label to justify British military activity was acute. 
In 1784 Parliament had forbidden Subordinate Presidencies of the Governor- 
General of India and Council (of which the British government in Penang was 
one) to make war or even to negotiate a treaty without express permission 
from higher authorities, ultimately those in London, except in the direst 
emergencies. 106 Aside from vernacular usages, memories of Livy or Plutarch 
from the schooldays of classically educated British colonial administrators, 
and some possible analogies to the use of the label "pirate" to help suppress 
the political activities of James II 's privateers, it was strongly in the interest of 
British colonial officials to find somewhere a way around the restrictions of 
the Act of 1784 if the ambitions of their aggressive merchant constituents in 
distant outposts like Penang were not to embroil entire colonies in bloody 
episodes. The Malay nobility had to be convinced that the British would not 
confine themselves to defense, would in fact act before attacked, if a major 
Malayan attack were to be deterred. It was very tempting to call Malayan 
military adventures "piracy." 

The word pops up in much of the official and unofficial correspondence of 
the time. Sir T.S. Raffles in 1811 used it in contemplating the legal basis for 
curbing the young Malay nobility. 107 In 1819 Governor Bannerman of Penang 
tried unsuccessfully to annex Pangkor Island, nestled in the Perak coast, 
partly as a base from which "piracy" could be fought. 108 In 1824 Colonel 
Nahuijs, a Dutch official in Malacca, suggested to the Dutch Governor- 
General in Batavia (now Djakarta, the capital of Indonesia) that various legal 
problems surrounding the British acquisition of Singapore Island would have 
been avoided if the British had classified the senior Malay chief there, the 
Temenggongofjohore, as the leader merely of "sea-scum, "instead of as the 
highest official of Johore under the Sultan. To Nahuijs, he was merely the 
"head of the pirates:" 

If the British Government, instead of entering into their contracts . . . with the son of the 
king of Johore and the head of the pirates, had driven the latter from Singapore by armed 
force and had established itself there, then its title of possession could have been based on 
Right of War, and our Dutch Government, which had left the pirates so many years . . . 
undisturbed . . ., would certainly not have all these strong and convincing arguments 
which we can now bring forward. 109 

In fact, the easy "legal" solution suggested after the fact by Nahuijs would 
not likely have left the Dutch with no counterarguments, 110 and the 
difficulties over the British occupation of Singapore Island had been resolved 
by Treaty concluded in London between the British and Dutch on 17 March 
1824. m That Treaty does refer to "piracy" and to some extent indicates the 
looseness with which the word was coming to be used in Europe as well as in 
the farther reaches of the British and Dutch Empires: 



British 19th Century Practice 223 

Their Britannick and Netherlands Majesties . . . engage to concur effectually in 
repressing Piracy ["Zeerovery" in the Dutch version] in those Seas: They will not grant 
either asylum or protection to Vessels engaged in Piracy ["Zeeroof], and They will in no 
case permit the Ships or Merchandize captured by such Vessels to be introduced, 
deposited, or sold, in any of their possessions. 112 

There is no mention of extradition, cooperation in criminal procedures or 
arrests. Indeed, the only steps actually envisaged seem to relate to "Vessels," 
as if unmanned ships alone interfered with trade. This might be a reflection of 
the usage noted in Raffles 's correspondence that identified Malay nobles 
sailing under licenses issued by the highest officials of the various Malayan 
sultanates as "pirates;" Raffles, when writing in 1811, was the British 
Lieutenant Governor of Java, the seat of the Dutch Empire occupied by the 
British 1811-1816 to keep its resources from the French under Napoleon. The 
complications that might occur if the British or Dutch took to trying as 
criminals at British or Dutch law the licensed tax-collectors and "privateers" 
of the Malay sultanates were too serious to warrant discussion; certainly 
neither power would undertake an obligation to the other to incur these risks 
of embroilment in Malayan law and politics by imposing European notions on 
the organized political societies of the area. 

Nonetheless, the use of the word "piracy" to justify European political 
adventures at suppressing Malayan activities felt to be inconsistent with 
British, or at least European, "hegemony," 113 led to entanglements that 
brought local British officials into conflict with the Supreme Government as 
the relationship between suppressing "pirates" and going to war in 
contravention of the Act of 1784 was frequently unclear. It is impossible to 
give more than a sampling of the many instances of which records survive in 
which the word "piracy" was used to justify British political action in 
Southeast Asia, but two incidents led to an examination of the relationship 
between the political use of the word and the legal use of the same word, and 
so are especially instructive. 

On 17 October 1826 James Low, a British official under orders from the 
Governor of Penang, negotiated an agreement with the Rajah of Perak under 
which Perak would have ceded to the East India Company "the Pulo [Island] 
Dinding and the Islands of Pangkor . . . because the said Islands afford safe 
abodes to the pirates and robbers, who plunder and molest the traders on the 
coast and the inhabitants on the mainland . . . and as the King of Perak has not 
the power or means singly to drive out those pirates." 114 A week later, on 25 
October 1826, the Rajah of Perak sent to Low a letter, obviously written by 
Low and taken by the Governor of Penang, Robert Fullerton, to be a binding 
commitment by Perak, providing: 

His Majesty will speedily seize or expel the head officers now residing at Kurow . . . [and 
other named places], who may have connected themselves with pirates or robbers, and 
will give warning to the people there, that should they let pirates or robbers remain 



224 The Law of Piracy 

amongst them, and should any English come then from Penang in search of pirates, the 
innocent might in that case suffer with the guilty. 115 

In late January 1827, Fullerton sent Low to the Kurow on what he termed a 
"pirate-hunting" expedition aimed at ousting from that area a Kedah official, 
Nakhoda Udin, who was believed to have been involved in some depredation 
in Penang waters. 116 The raid was repeated in April and May 1827. 117 In the 
fuss that followed, the Governor General of India, Lord Amherst, took the 
position that: 

[AJccording to the laws of all civilized nations, [Udin's] conduct should have formed the 
subject of representation and remonstrance to his own Government. If that Government 
refused redress, the question of the proper course to be pursued would then have 
naturally attracted the grave and deliberate consideration of your Board and of the 
Supreme Government. 118 

Low replied by referring to European difficulties in dealing with what he 
regarded as an analogous situation involving the "pirates" of Algiers, and 
argued that as the states of Europe had the legal right to suppress Algerine 
corsairs, so in the Malay Peninsula, "the neighbouring state or states whose 
subjects suffered from the cruel depredations of the pirates . . ., had a just right 
to adopt any means for their destruction." 119 

Fullerton and Robert Ibbetson, his chief subordinate, the "Resident 
Counsellor of Penang," replied to Lord Combermere, the Vice President in 
Council of the Supreme Government, on 27 August 1827, fully supporting 
Low and arguing that British municipal law being inapplicable within the 
domains of the Malay sultanates, and the Malays and Thai (who also claimed 
sovereign rights in the area) being either unable to apply their law or 
themselves involved in the actions of Udin, summary action against the 
"pirate" was appropriate: 

The regular course ... is to require the State protecting pirates to disperse them. If 
unwilling, or as in the case of Perak, unable it is our duty to assist them and do it 
ourselves. We are bound by the Treaty of 17 March 1824 to cooperate with the 
Netherlands Government in the destruction of pirates, and the Straits of Malacca is the 
portion of the sea we must be expected to protect. 120 

To the suggestion that Udin himself, as a person injured by British activity, 
might bring suit in a British court in Penang against Low or even Fullerton for 
the actions taken beyond their authority as officials, Fullerton and Ibbetson 
replied: 

[F]or a noted pirate, one of the common enemies of mankind whom we are bound to 
destroy to be allowed to appear in a Municipal Court against an Act committed in a 
sovereign capacity beyond its [i.e., the Court's] jurisdiction is a novel idea certainly. 121 

The Supreme Government apparently mistrusted the rash Fullerton, while 
at the same time accepting his view of the law and politics. The cession of 
Pulo Dinding and the Islands of Pangkor was refused and Fullerton 's military 
support was cut to the point that further adventures of this sort would be 



British 19th Century Practice 225 

impossible. 122 But at the same time, the propriety of Low's raids was 
approved. The evidence of Udin's lawlessness was found convincing, wrote 
the Governor General of India in Council to Fullerton on 16 November 1827, 

and it is much to be regretted that this was neither forwarded for the information of the 
Supreme Government, nor even alluded to in the correspondence upon which the view 
taken in the Governor General's letter of 23d July . . . was founded. But for the still 
unsettled question of. . Jurisdiction [over Kurow], the example which was made of that 
nest of pirates would have been entirely satisfactory. 

If the Thai official in the area can prove his claim to the Kurow, the British 
would be "answerable to him for the error, "Lord Amherst continued. But if 
he should press that claim, "You will at the same time impress on [him] the 
right which all nations possess to seize and punish pirates wherever they may 
be found." 123 

It seems plain that both the local authorities and the officers of the Supreme 
Government in India believed that the forms of British law were not capable 
of dealing with "piracy" in the area. The label was attached to land-based 
groups with political connections; the counter-action was taken on land that, 
whatever its legal subordination might be, it was certainly not within the 
territorial jurisdiction of any British court. Nor were the acts in question 
done within the jurisdiction of British Admiralty courts, 124 the attack on Udin 
having occurred on land. Had Udin been arrested in Penang or Province 
Wellesley, presumably he could have been tried in Calcutta for "piracy, " but 
British authority to arrest him was not considered to exist outside the 
territorial jurisdiction of a British court. The problem was treated as one of 
policy only, and no mention was made in any of the known correspondence of 
Molloy's or Jenkins's rationales for arrest and summary judgment by ships' 
masters either under the natural law of property and self defense, or under 
presumed license from their flag states. 125 

The word "pirate" was used repeatedly in further correspondence by the 
British authorities in Penang with regard to a dynastic struggle in Kedah, and 
applied to the Malay forces seeking to restore a deposed Sultan to his claimed 
authority there in defiance of the new Sultan placed there by the Thai 
exercising what they believed to be their own legal right to determine 
succession in Kedah. 126 When Robert Ibbetson succeeded Robert Fullerton as 
the chief British official in the area he adopted Fullerton 's vocabulary. But 
when he attempted to use the term "piracy" to bring British naval forces 
more actively into the struggle to suppress the forces of the deposed Sultan as 
"pirates," he was brought up short by Rear Admiral Sir Edward W.C.R. 
Owen, the British Commander-in-Chief of Naval Forces, East Indian 
Station, who advised him that, in the words of Governor Ibbetson, "I could 
not treat as pirates any against whom no acts of piracy had been specifically 
alleged, or proof obtained. " 127 "Piracy" was in that instance viewed by the 
Senior Naval Officer in the area as a concept of British municipal law, not an 



226 The Law of Piracy 

excuse for politicl action. When Samuel G. Bonham, then Resident 
Counsellor at Singapore subordinate to Governor Ibbetson, suggested a 
"pirate-hunting" expedition to the East coast of the Malay Peninsula to 
counter a Thai move in Trengganu, Ibbetson replied with a careful analysis of 
the Treaty of 1826, did not mention "pirate-hunting" or "piracy" in any way, 
and refused Bonham's proposal. 128 

In 1838 Bonham was Governor of the "Straits Settlements" of Penang, 
Singapore and Malacca, and tried again. Without using the word "pirate," he 
asserted British authority over the rebel leaders, Tuanku Mohamed Saad and 
Tuanku Mohamed Taib, nephews of the deposed Sultan of Kedah, Taju'd-din, 
by virtue of their holding land in the British colony (which Bonham believed 
made them subjects of the British Government) and asserting that their object 
in Kedah was not political but mere plunder. 129 The Thai had now taken to 
calling the rebels "pirates . . . enemies to the Siamese as well as the English 
countries" and requested the British to drive them from the seas. 130 The 
Supreme Government did not accept this Thai classification, 131 but instructed 
Bonham to take various actions consistent with British commitments to 
Thailand under the Treaty of 1826. 

The result of this instruction was a blockade which Bonham apparently 
regarded as resting partly on the Treaty of 1826, which was then interpreted 
to require the British to prevent the Malay claimants to the throne from 
disturbing Kedah in any way. It rested also partly on Bonham's conviction 
that it was a British obligation at general international law to suppress 
"piracy," and that the Malay claimants were out for personal gain, thus 
"pirates" in the contemplation of international law. The Thai agreed with 
both these assertions. The British naval officers present had serious doubts 
about the second. 132 

Mohamed Saad; "Pirate" or Patriot? The matter was resolved, in a fashion, 
by the success of the "pirates" under Mohamed Saad on 2 August 1838, 
followed on 7 March 1839 by the complete victory of the Thai. On 6 April 
1839 Mohamed Saad and two other ousted Kedah nobles fled to British 
territory to escape the Thai. On 2 July 1840 Mohamed Saad was captured in 
Province Wellesley, a strip of British territory along the coast of Kedah 
opposite Penang, and on 26 October 1840 he was tried at Penang on a charge 
of "piracy." 133 The result was an acquittal for Mohamed Saad and his 
companions. 134 

The specific charge was the forcible capture of a boat on "the high seas" on 
8 July 1840, 135 thus after the Thai had reconquered Kedah and Mohamed Saad 
and his people had lost their base there. It is unclear where their base actually 
was and what the nationality of the owner or persons on board the boat; the 
possibility was not considered that there might have been normal British 
jurisdiction resting on preparatory acts or conspiracy by Mohamed Saad and 
his companions in Province Wellesley or other British-governed territory, or 



British 19th Century Practice 227 

on the nationality of the victims. 136 Instead, the case was treated as one of 
"piracy" jure gentium and the defense first went to the jurisdiction of the 
British courts to sit in judgment on the public acts of a "rebel" against his 
sovereign (Thailand). The arguments of counsel are learned and eloquent in 
the thunderous style of the period. Citations to R. v. Kidd, Palachie's Case 137 
and a charge by Leoline Jenkins 138 appear among other citations. 139 On 2 
November 1840 the Recorder, Sir William Norris, overruled the first plea to 
the jurisdiction by the defendants on the basis that defenses going to the 
substance of the charge cannot be a basis for defeating the court's jurisdiction. 
Norris cited R. v. Kidd for the proposition that even if Mohamed Saad had a 
commission from the rightful Sultan of Kedah, he might have exceeded it and 
thus become a "pirate." In general, Norris took a "naturalist" position, 
asserting British jurisdiction to exist over foreigners for their depredations on 
the high seas against yet other foreigners. 140 

The case was then tried before a jury with the defense alleging that as 
subjects of the "King of Quedah" they "are not British subjects, neither are 
they are [sic] of the description of other persons who, by the Laws of England 
respecting the offences of Piracy, are made amenable to the said Laws" by 
virtue of their official connection with the Ruler of Kedah. 141 Moreover, by 
virtue of that connection they claimed the right: 

to pursue any hostile measures of retaliation against Subjects of Great Britain and Siam, 
that were consistent with the received Laws of Nations by States at war with each other. 
By which acts of retaliation, such as are charged . . . , the said defendants . . . might 
have rendered themselves liable to the Laws of War, but not to the Criminal Laws of 
England. 142 

Norris charged the jury that the law of nations applied to the case, 
apparently meaning "international law" or the law between states rather 
than the private law identical in all states, and not the law of England. He held 
that uncontradicted evidence made it clear that the defendants acted for 
public purposes on behalf of the Sultan of Kedah at all important times. He 
argued as a matter of law that dynastic struggles such as that of James II after 
1688 143 and in Scotland for forty years after the Act of Union of 1707 144 could 
not be deemed by international law to involve acts of "piracy " whatever the 
labels used by one or other of the parties to the struggle. 145 

The prisoners were released except for Mohamed Saad himself, who was 
held as a political prisoner in "honourable captivity" at the will of the 
Crown. 146 

The impact of the case on the British political use of the term "piracy" in 
the Malay area was great. Governor Bonham immediately consulted Norris 
formally about the law on 23 December 1840, asking a series of written 
questions concerning the implications of the decision for other British 
measures to suppress Malay activities less closely tied to Peninsular politics 
and relations with Thailand. He looked beyond the particular case to the 



228 The Law of Piracy 

wider implications of Norris's view of the law. First, Bonham asked if the 
British executive authorities in Penang had been asked by the court for a 
statement of British political relations with Kedah. Second, he asked if the 
other Kedah nobles of the family of the Sultan who had been ousted by the 
Thai before Mohamed Saad began his activities to regain the throne had any 
immunities from ordinary suit in the British court in Penang, where they 
resided. 147 

Norris replied a month later. To the first of these two questions he 
answered, No. In an earlier case dealing with Ilanun (Malay) defendants 
accused of robbery within the Admiralty jurisdiction, inadequacies of their 
defense made it impossible for them to frame their relations with their 
political superiors in legally comprehensible ways, "so in humanitarian 
interests the court undertook to find the facts without adversary 
proceedings." That accounted for a query to the executive officials; it was 
not a sign that the law either required such a query or that the courts would be 
bound to apply as if true the labeling system urged by executive officials as a 
result of their own evaluation of the facts and political interests. In the 
Mohamed Saad case, Norris continued, Saad was quite well represented and 
no doubt of the facts existed, 

his possession and actual government of Keddah for many months, his expulsion from 
thence by the British and Siamese authorities, and the continuation of hostilities 
between him and them up to March last, if not to the very moment of capture. . . . 
Neither for its own satisfaction, therefore, nor injustice to the accused did the Court 
feel itself called upon to seek further information from the executive authorities . . . and 
scarcely would it have been justified in volunteering to call upon the Government, 
especially in a government prosecution, as this essentially was, for evidence to rebut or 
explain away a defence, the substantial truth of which there was no apparent reason to 
doubt. 148 

As to the other question, Norris refused to reply on the ground that it would 
be the particular facts of the case that would determine the legal results, and it 
would be improper for a judge to anticipate the outcome of a case that had not 
yet been brought. 149 

The Court of Directors of the East India Company in London accepted 
Norris's analysis on both points: The power of an English court at English law 
to determine the facts and the legal categories best fitting those facts for the 
purpose of a case before the court regardless of perceptions of fact and 
categories deemed controlling by the executive authorities, and the 
impropriety of speculation as to the outcome of future cases. They issued 
policy guidance to the Government of India at Fort William: 

If any relative or dependant of the Ex Rajah [of Kedah] should hereafter engage in 
similar courses, he will of course on the principles laid down by the Recorder, be treated 
as a public enemy, and when taken, as a prisoner of war; unless the case should be such as 
under the following passage of the Recorder's address would afford a prospect of 
conviction for piracy. 150 



British 19th Century Practice 229 

The passage of Norris's charge to the jury that was thus adopted as policy 
guidance on the point of law, defining when a Malay noble might be 
considered a "pirate," was quoted: 

He [Norris] by no means intended to say that every Malay inhabitant of India 151 who 
could contrive to fit out a prow [native vessel; usually spelled prahu in modern writings] 
was at liberty to cruize about and capture any property belonging to subjects of Siam 
and of this Government which might fall his way without fear of incurring the guilt and 
punishment of piracy. In every such case a piratical intention must necessarily be 
presumed until the contrary was shown by the clearest evidence of a combined national 
object, and an authority or commission from some person or persons who had an 
indisputable right to grant it. 152 

The legal designation "pirate" was thus held to be inappropriate for those 
pursuing public ends who have some show of organization sufficient to 
warrant a court in holding that a license had been granted by a person or 
persons with a "right" to grant it. Furthermore, the determination of the 
legal system under which that "right" existed was to be a matter of law 
determined by a British judge, not by the executive authorities; that "right" 
apparently did not derive from British or English law, under which nobody 
had authority to issue such licenses except the officials of the Crown. Thus a 
natural law approach was taken in which judges themselves determined the 
fitness of labels based not on policy considerations and legal results sought for 
policy reasons, but on the conception that the law existed outside of national 
interest and could be determined and applied by British judges in the normal 
way, on the basis of argument by learned counsel. To fit this approach into a 
legal pattern more familiar to lawyers today, it appears to have envisaged a 
rule of conflict of laws applicable in English colonial courts that referred 
cases of alleged "piracy" to true international law, not British Imperial law 
(whose spokesmen were officials of the Crown). By "international law" as 
perceived by Norris, the label "pirate" was not appropriate for a political 
actor, even a Malay fighting in an area of British hegemony; it was 
appropriate only for sea-robbers, those called "pirates" by British municipal 
law. This approach was clearly a check on those British officials who fancied 
applying the ancient Roman conception of hegemony to the fringes of the 
Empire; what they wanted to gain as a matter of law, they would have to fight 
for militarily, thus justify their actions not as law-enforcement, but as 
political action within the terms of their delegated authority and the 
restraints put on it by the Parliament in London. 

Another implication was the continued restriction of the applicability of 
the British law regarding "piracy" to those cases in which there was some 
legal basis for applying British prescriptions to the acts of the foreigners 
outside of British territory. Norris had referred to the capture of property 
"belonging to subjects of Siam or of this Government" in the passage adopted 
in London as the basis for future policy. The extension of criminal jurisdiction 
to cover the acts of foreigners against a state's own nationals on the high seas, 



230 The Law of Piracy 

the use of the nationality of the victim as a basis for "standing" to apply a 
state's municipal law to the foreigner acting abroad in territory in which no 
other state had a greater basis for claiming jurisdiction, has already been 
discussed. 153 The extension of this basis for jurisdiction to protect Thai 
nationals is not explained, but in context probably rests on a reading of British 
obligations under the Treaty of 1826 requiring the English to "aid and 
protect" Thai merchants and their ships coming to trade in territory 
governed by the East India Company. 154 

If this narrow reading of Norris's position is correct, it leaves a gaping hole 
with regard to depredations not only against Malays, but also against Dutch 
and other European merchants coming to trade in the Straits Settlements. It is 
not surprising that British colonial officials began looking for other ways to 
spread the net of British Imperial law over the area and make the sea lanes safe 
for peaceful trade. The way was to shift the focus out of the courts, and assert 
a right at British Imperial law to hunt down "pirates" as a matter of enforcing 
not the municipal law administered by Admiralty courts, 155 but of enforcing 
international law, or the British version of international law, directly against 
groups or persons whom that law was interpreted to leave unprotected, and 
which could be destroyed under the law of war or even under an anarchical 
conception that those unprotected by the law were mere "outlaws" and 
action against them required no special license under international law. 

Lushington Unleashes the Navy f s Naturalists. The tale has already been told 
with scholarly reliance on primary documents regarding the British activities 
to suppress "piracy" in waters along the coast of China 156 and in the waters 
adjacent to the Malay Peninsula. 157 It is, of course, unnecessary to repeat that 
story here. But the implications on the evolution of legal conceptions have 
never been fully analyzed 158 and it might be instructive to examine here the 
further impact of the Mohamed Saad case on British conceptions of "piracy" 
as a political act justifying political counteractions under the British 
administrators' interpretations of international law regardless of the criminal 
law administered by British Admiralty tribunals following the precedents 
begun in 1536. 

It is an irony of legal history that the Mohamed Saad case and the formal 
shift in British policy that it caused in Southeast Asia was barely reported in 
England, and that two Admiralty decisions in England that had very little 
impact on British policy were so widely reported as to take the form of 
leading cases although misinterpreted by later generations. In 1843 Henry 
Keppel, a son of the Earl of Albemarle, was Captain of H.M.S. Dido in 
Malayan waters. Considering some Dyak villages in Borneo to be "piratical, " 
he attacked them in waters that could by no definition be considered "high 
seas" except that they were navigable, and wiped them out. The political 
effect of the raid in Borneo was to help James Brooke, an English adventurer, 
in his attempts to get control personally of the government of Sarawak. 159 



British 19th Century Practice 231 

Legally, the question was raised as to whether the label "pirate" could be 
attached to organized political groups operating on land as well as at sea to 
interfere with the British version of freedom of navigation on the high seas 
when Keppel sought the bounty provided for engagement with "pirates" 
under the Bounty Act of 1825. 160 The decision of the Court of Admiralty was 
written by Dr. Lushington and delivered in 1845 under the name Serhassan 
(Pirates). 161 It awarded the five Pound Bounty with regard to 125 "pirates on 
board the vessels at the commencement of the conflict," and the twenty 
Pound bounty with regard to 45 "pirates . . . captured or destroyed." 162 

The only act of "piracy " alleged against the Dyaks was their attack on the 
British force led by Captain Keppel and his men. The Queen's Advocate 
seeking to limit the payment of bounty under the Act of 1825 apparently did 
not argue that such an attack if intentional would be an act of war, not 
"piracy," but only that the attack was in context "unintentional," at least 
that is as far as Dr. Lushington was willing to discuss the matter: 

It matters not that they may possibly have entertained no inclination to bring themselves 
in conflict with the British power; it is sufficient, in my view of the question, to clothe 
their conduct with a piratical character if they were armed and prepared to commence a 
piratical attack upon any other persons. 163 

There is no analysis of the reach of British criminal law jurisdiction; no 
apparent limit to the legal right of a British force to sail where it would and to 
protect any person, of whatever nationality, who might be the victim of a 
"piratical" attack. The phrase "piratical character" seems to be used with no 
analysis at all, implying that the Dyaks had no shadow of a legal right under 
the law as understood by Dr. Lushington to resist any British inroads on their 
territory or exert a jurisdiction of their own to control commerce, tax it, or 
forbid it in waters they might claim as part of their own territory. Moreover, 
there is no attempt using the usual tools of statutory construction to find this 
meaning of the word "pirate" in the intention of the Parliament when the Act 
of 1825 was passed other than a recital of the preamble. That preamble is 
singularly unhelpful in this context, itself using the phrase "Pirates or Persons 
engaged in Acts of Piracy" without narrower definition: 

Whereas it is expedient to give Encouragement to the Commanders, Officers and 
Crews of His Majesty's Ships of War and hired armed Ships to attack and destroy any 
Ships, Vessels or Boats, manned by Pirates or Persons engaged in Acts of Piracy . . . 164 

It appears that British naval forces would do much better attacking and 
destroying anybody who interfered with seaborne commerce than trying to 
arrest and bring such persons in for trial before a British court competent to 
hear a "piracy" case. The result in practice was the proliferation of claims to 
the point that the Bounty Act had to be repealed. That proliferation is 
traceable directly to the Serhassan (Pirates) decision. 165 

The Bounty Act of 1825 was in fact repealed on 25 June 1850 166 and replaced 
with a provision for the Lords Commissioners of the Admiralty to request the 



232 The Law of Piracy 

Directors of the East India Company (by then incorporated into the formal 
Government of England for all practical purposes) 167 for money to pay a 
reward fixed at the discretion of the Commissioners under the same 
procedures as applied in the case of British actions to suppress the slave 
trade. 168 The Act of 1850 preserved bounty claims that arose out of British 
naval activity before the Act of 1850 took effect in British municipal law. 169 
Its operative section resolved the question of whether shore-based persons 
could be "pirates" by adopting Dr. Lushington 's conclusion in The Serhassan 
(Pirates) case that shore-based persons could commit "piratical" acts when 
they engaged British naval or amphibious forces, and it appears to have been 
assumed that all acts involving those forces were within the ancient assertions 
of English Admiralty jurisdiction or on the "high seas" even if occurring 
ashore: 

That, whenever any of Her Majesty's Ships or Vessels of War, or hired armed Vessels, 
or any of the Ships or Vessels of War of the East India Company, or their Boats, or any of 
the Officers and Crews thereof, shall . . . attack or be engaged with any Persons alleged 
to be Pirates afloat or ashore, it shall be lawful for the High Court of Admiralty of 
England, and for all Courts of Vice Admiralty in any Dominions of Her Majesty beyond 
the Seas ... to determine whether the Persons or any of them so attacked or engaged 
were Pirates . . . 170 

Dr. Lushington was the person who had to construe the new legislation. On 
1 December 1851 a British ship, the Eliza Cornish, damaged by weather, 
anchored in the Straits of Magellan for refitting. A nearby convict settlement 
maintained by the Chilean Government overthrew the Chilean guards and 
seized the vessel and its cargo as part of what was regarded by Dr. Lushington 
as an insurgent operation challenging the authority of the Government of 
Chile. The vessel was recaptured by a British warship at sea, and with a small 
British contingent and master, but with her mixed original crew, the Eliza 
Cornish set out for England. She foundered again and was sold in Portugal, 
eventually returning to England under Portuguese colors and renamed the 
Segredo. In an Admiralty action in which the original English owners sought to 
have the Portuguese sale annulled 171 Dr. Lushington held that it was irrelevant 
whether the taking in Chile had been by insurgents or "pirates" 172 but that the 
English law authorizing the master to sell the vessel was the only statute to be 
construed. Lushington held for the English original owners on the ground that 
the English municipal law rule, although statutory, restricting the ship's 
master's legal power to sell his vessel to cases of "necessity" as conceived by 
Parliament, was somehow a better reflection of the universal natural law of 
nations than the Portuguese rule, which allowed a wider discretion in the 
master and safeguarded the interests of the good faith purchaser in Portugal. 
Lushington seems not to have considered persuasive any conflict of laws 
approaches. The phrase is not used by him. As a judge, he seems to have 
abandoned entirely the positivist approach he had taken as legal adviser to the 



British 19th Century Practice 233 

political officers of the Crown in 1823, and become a champion of judicial 
discretion affixing legal categories as interpreting universal law regardless of 
jurisdictional restraints on British Admiralty tribunals, if any. It is as if he and 
Joseph Story in the United States had exchanged heads in 1834. Ironically, the 
cases that involved this resurgence of naturalism were based not on incidents 
to be resolved by the rule of reason, but on a naturalist construction of British 
municipal legislation. Holding that legislation to express universals that as a 
matter of law could not be contradicted by the legislation or judicial decisions 
of foreign Admiralty or other tribunals, Lushington had found a legal path 
through which British legislation could rule the world, at least as long as 
British courts could assert jurisdiction to hear the cases. The legal and 
political implications of this were enormous. 

Immediately after Lushington 's decision in the Segredo case, an application 
for bounty was made by the British captors under the Act of 1850 and opposed 
by the Crown and the English owners, arguing that if the Chilean captors 
were insurgents, Chile, not the British Treasury and the owners in a salvage 
claim, would be legally responsible for the costs to the owners occasioned by 
the temporary loss of the vessel. Dr. Lushington could not avoid a legal 
distinction created by English municipal law that seemed to rest on 
classifications created by international law. 173 

He began by arguing that both the Act of 1850 and its predecessor 
Bounty Act of 1825 had in mind the same conception when they used the 
word "pirate." That conception, he held, rested on the usage of the word 
in English criminal law: "I apprehend that, in the administration of our 
criminal law, generally speaking, all persons are held to be pirates who are 
found guilty of piratical acts; and piratical acts are robbery and murder 
upon the high seas." 174 He then went on to the first of several grave 
confusions: 

I do not believe that, even where human life was at stake, our courts of common law 
ever thought it necessary to extend their inquiries further, if it was clearly proved 
against the accused that they had committed robbery and murder upon the high seas. In 
that case they were adjudged to be pirates, and suffered accordingly. 175 

In fact, as we have seen, English Common Law courts were never involved in 
"piracy" cases, and questions of license were the essence of several cases 
before Commissions constituted under the statute of 1536. Those cases were 
never overruled but confirmed by implication of the statute of 1700, laying a 
new rule down in conformity with the Commissions' and Admiralty Board's 
approach that an Englishman could be a "pirate" who acted against other 
Englishmen under color of a foreign commission. 176 

Turning to the question of whether to be "piratical" the acts had to be 
aimed indiscriminately at all potential victims, Dr. Lushington specifically 
held not, finding the leading American Case, United States v. Smith 177 on this 
point irrelevant: 



234 The Law of Piracy 

Whatever may have been the definition in some of the books, and I have been referred 
by Her Majesty's Advocate to an American case, where, I believe, all the authorities 
bearing on this subject are collected, it was never, so far as I am able to find, deemed 
necessary to inquire whether parties so convicted of these crimes had intended to rob on 
the high seas, or to murder on the high seas indiscriminately. 178 

This view, directly at odds with the American position adopted in U.S. v. 
Klintock, 179 when the "standing" point was squarely raised and argued, seems 
insupportable in logic, and Dr. Lushington's logic seems elusive. He did not 
discuss the reach of domestic jurisdiction to make rules and definitions, or 
national jurisdiction to apply even internationally agreed rules to the acts of 
persons not within the allegiance of the sovereign of the applying court when 
the victims of those acts are not legally protected by that sovereign under any 
acknowledged principle of law. Nor did he consider whether there were 
lacunae in the coverage of law that could be filled by extending national 
jurisdiction as the Americans had done up to the point at which some foreign 
municipal law begins to apply or some foreign interest protected by 
international law shifts the burden of enforcing that law to the shoulders of 
those most directly affected, thus most able to compromise and negotiate a 
solution to any particular tension. Instead, Dr. Lushington seems to have 
assumed that British courts applying British municipal conceptions of 
"piracy" as a crime under English law (indeed, under English Common Law, 
where there was no such crime) 180 faced no significant problems deriving 
from the distribution of authority to states under the international legal 
order. He stated that: 

Though the municipal law of different countries may and does differ, in many respects, 
as to its definition of piracy, yet I apprehend that all nations agree in this: that acts, such 
as those which I have mentioned, when committed on the high seas, are piratical acts, 
and contrary to the law of nations. 181 

Since the phrase "the law of nations" not only commonly meant the identical 
municipal "natural" law of all countries to writers of the time, and Dr. 
Lushington is explicit that what he was looking at was the least common 
denominator of such municipal laws as they might define "piratical acts, " his 
failure to consider questions of jurisdiction, his assumption that a British 
court could apply to foreigners its version of the "law of nations" applicable 
to "piracy" without any consideration of the British connection to the 
offense, seems unaccountable. Perhaps, in this case, the nationality of the 
Eliza Cornish so dominated his thinking that he did not consider the point 
worth mentioning. 

But the major issue to Dr. Lushington was not the reach of British 
jurisdiction or even the definition of the "crime" at English municipal law. It 
was the reach of English law to the acts of those who claimed a license from a 
foreign belligerent: insurgents. As to that, he began by arguing that even if 
international law gives to belligerents a license to attack opposing forces of 



British 19th Century Practice 235 

their own country, that license does not extend to attacks on other countries' 
shipping. But instead of regarding the attack on third country (British) 
shipping as a breach of belligerent obligations toward neutrals in a war, he 
argues that it can properly be considered "piracy," "especially if such acts 
were in no degree connected with the insurrection or rebellion." 182 There 
follows the most extreme, and most often cited, passage in the case: 

Even an independent state may, in my opinion, be guilty of piratical acts. What were the 
Barbary pirates of olden times? What many of the African tribes at this moment? It is, I 
believe, notorious, that tribes now inhabiting the African coast of the Mediterranean 
will send out their boats and capture any ships becalmed upon their coasts. Are they not 
pirates, because, perhaps, their whole livelihood may not depend on piratical acts? I am 
well aware that it has been said that a state cannot be piratical; but I am not disposed to 
assent to such a dictum as a universal proposition. 183 

He concluded that the Parliament in enacting the Acts of 1825 and 1850 had in 
mind the depredations on the high seas committed by "the subjects of a 
barbarous state, or by insurgents" as well as be mere unlicensed individuals or 
groups. 184 

Turning to the circumstances of the capture of the Eliza Cornish, Dr. 
Lushington pointed out that the Act of 1850 refers to engagements against 
pirates "afloat or ashore" 185 and concluded that the forcible capture of the 
vessel in port, even though there was no immediate bloodshed and a color of 
right claimed by the insurgents, was "piratical" within the sense of the Act. 
He did not distinguish between those who might have had political motives 
and those acting animofurandi, asserting "that all who embarked on board the 
Eliza Cornish . . . were conspirators in the original murders and robberies." 186 

The question of political motive seems not to have been considered. Dr. 
Lushington concluded that: 

It was for services like these [the engaging of the "pirates" and recapture of the vessel] 
that the Legislature intended to provide a reward; services of great importance to the 
safe navigation of the seas in that part of the world, and effected by the capture of a band 
of persons whose acts of murder and plunder, both on land and at sea, rendered their 
capture and punishment indispensable to the safety of ships of all nations occupied on 
those waters. 187 

It is clear throughout the opinion by Dr. Lushington that his concern is not 
with establishing any definition of "piracy" at international law, or even 
"piracy" at English municipal law for the purpose of a criminal trial; there 
was no criminal trial involved. Nor did his concern involve "piracy" as an 
element of a property adjudication; the Magellan Pirates case was a simple 
bounty claim under a British statute, and, although coupled with an 
implication for salvage charges, was not an in rem action and did not determine 
questions of property directly. 188 His concern was to construe an Act of 
Parliament providing rewards for naval action far from England. The 
reference to the English municipal crime of "piracy," and his dismissal of 



236 The Law of Piracy 

American precedents with regard to aspects of that definition and its reach to 
acts of foreigners abroad, are consistent with his search for an understanding 
of what the non-lawyers in Parliament seemed to intend when they referred 
to "piratical acts" in the bounty legislation. The result was to transfer the 
pejorative definition of "piracy," the usage that had been hanging in the 
background since at least the time of James I, 189 into British Admiralty law 
and policy. 

As noted above, no British criminal jurisdiction was involved; the 
"pirates" had in fact been turned over to the officials of the Government of 
Chile recognized by the British authorities, 190 and their jurisdiction to apply 
Chilean law to Chilean nationals acting in Chilean territory, despite the 
claims of belligerent rights, was undoubtable. 191 

The major implication of the case was to establish British Imperial law as 
the basis for British political action worldwide. Upholding the jurisdiction of 
the British Parliament to prescribe with regard to the acts of British naval 
forces on foreign shores, which can hardly be doubted, and silent as to the 
reach of British municipal criminal law to measure the acts of foreigners 
there, the case gave every encouragement to British military planners to 
believe their political action against foreigners who interrupted the course of 
British (and possibly third country) commerce was legally justifiable. Since 
no extension of British municipal law was involved beyond the reach of the 
Admiralty courts established in peacetime, the essence of the departure from 
precedent taken by the decision of Dr. Lushington in the Magellan Pirates case 
was its application of a British political definition of "piratical acts" tojustify 
political action against groups claiming legal privileges under international 
law. Indeed, the very form of the investigation pursued by Dr. Lushington, his 
search for a meaning for the adjective "piratical" rather than a meaning for 
the noun "pirate," indicates the narrow scope of his logic. Apparently, to Dr. 
Lushington "piratical acts" were those acts which "pirates" at English 
criminal law committed; no question of jurisdiction to enforce English law 
was involved and the Chilean insurgents might even not have been "pirates" 
at all. The bounty statute was construed to provide bounties for those 
engaging persons committing "piratical acts" whether or not "pirates" 
technically, and whether or not amenable to British courts' jurisdiction. From 
this point of view, Dr. Lushington's logic becomes entirely clear, but the 
precedent value of the case becomes petty; it turns out to have nothing to do 
with definitions of "piracy," but rather is a construction of a municipal 
statute giving a municipal reward to designated agencies of government 
deployed to suppress an activity in the public sphere which the Parliament felt 
should be suppressed. It is the assertion through an Act of Parliament of 
government policy to sweep the seas of all persons, whether licensed or not, 
who impede commerce by killing or robbing those whose business was trade, 
or, to bring up Lushington's views expressed in the Serhassan (Pirates) case, 



British 19th Century Practice 237 

who obstructed British naval activities whatever they were. It was, on a 
deeper level thus, an attempt to apply British municipal interpretations of 
international law regarding freedom of navigation (including port calls) by 
encouraging British assertions of naval power. Whether those assertions 
were consistent with international law as it derives from diplomatic 
correspondence and the structure of the legal order, was not considered by 
Dr. Lushington except in a passing reference patently false and in a context 
not directly applicable — a reference to the vernacular meaning of the 
adjective "piratical" as it might have been applied to the Barbary states and 
others, and not to any legal context at all. 

It was this passing reference to the "piratical" activities of "the Barbary 
pirates of olden times," and the inclusion of political societies of the same 
North African region under the label "pirates," that was the great change. As 
has been seen, the Barbary "states" had in fact never been considered legally 
as anything but states in the international legal order in "olden times" despite 
the losing arguments to the contrary by Gentili, 192 the representatives of 
Venice, 193 and the original British owner of the Helena before Lord Stowell in 
1801. 194 The vernacular use of the word "pirate" by the East India Company 
people in the Persian Gulf in the 1820s, as has been seen, 195 was not a reflection 
of any view of English law, but a local usage by East India Company officials 
in treaties that seem to have been significant in Parliamentary deliberations 
about extending the Napoleonic Wars' bounty provisions to the suppression 
of Arab sheikhdoms there, but aside from that there does not seem to have 
been any basis but English vernacular usage for Dr. Lushington 's conclusion. 

The basis for English vernacular usage in Roman precedents regarding the 
organized societies of the Eastern Mediterranean opposing the extension of 
Roman "hegemony " has already been noted. 196 It is thus not surprising to find 
the usage applied in England to analogous societies opposing the extension of 
British hegemony to areas in which there was British territorial expansion as 
in the Persian Gulf and Malaya. But it is highly significant to see the scope of 
the "hegemony" expanded to cover all seas, and land-based opposition not 
only in Malayan waters but even in Latin America. Since Dr. Lushington 's 
views applied to British naval activity worldwide, and were made in 
disregard of the questions of international law regarding belligerency that 
limited the British position with regard to the Greek independence 
movement in the 1820s, 197 and in disregard of the same factors that led to the 
acquittal of Mohamed Saad in Penang in 1840, 198 it is possible to conclude that 
by 1853, when the decision in the Magellan Pirates case was rendered, the 
British had differentiated the criminal charge of "piracy" at English law 
from the use of the term "piracy" to justify military action, and that the use of 
the term in the latter sense was not a reflection of any international consensus, 
but a purely British interpretation of the law, making it appropriate to call it a 
word of art in British Imperial law only. 



238 The Law of Piracy 
British Imperial Legal Policy and Real Public International Law 

The British Change of Definition. The decision by Sir Stephen Lushington in 
the Magellan Pirates case prompted reconsideration within the British 
Government concerning the definition of "piracy" and British action under 
the Bounty Act of 1850. The Magellan Pirates decision had come down on 26 
July 1853. On 15 February 1854 a legal "Report" was rendered by J.D. 
Harding for the Law Officers of the Crown to George W.F. Villiers, the 4th 
Earl of Clarendon, Foreign Secretary in the Aberdeen and Palmerston 
Cabinets of 1853-1858. 199 Although the subject is ships, "Piratical Vessels 
under British or other Flags," the report begins by referring to persons and 
defining "pirates:" 

1st, That all persons (whatsoever their origin, or under whatsoever Flag or Papers they 
may Sail, or to whomsoever their ship may legally belong) will be pirates by the Law of 
Nations who are guilty of forcible robberies, or captures of Ships or Goods upon the 
High Seas without any lawful Commission or authority. They and their Vessels and 
Cargoes may be captured by Officers and Men in the public Service of any Nation, and 
may be tried in the Courts of any Nations. For the purpose of Jurisdiction in capturing, 
or trying, them, it is of no consequence where, or upon whom, they have committed 
their Crimes, for piracy under the Law of Nations is an offence against all Nations, and 
punishable by all Nations. 200 

It is apparent that the extreme naturalist view traceable back in English legal 
perceptions to Molloy and earlier, was adopted as part of the "Law of 
Nations. "The phrase "Law of Nations" was used not to refer to the uniform 
municipal natural law of all countries, but in its public law sense of the law 
between sovereigns, as the notion of an "offence against all Nations" seems to 
envisage an offense defined by a body of law other than the municipal law of 
the "nation" affected. Thus, the British Imperial law definition of "piracy" 
resting on the intent of the British Parliament alone, was translated into an 
assertion of public international law, although, again, no supporting 
argument is given and the "natural law" of property and the legal power of a 
flag state to determine property rights in a vessel and the goods it carries 
seems to be assumed to be a part of public international law. There is no 
question of legal injury or "standing" raised, as jurisdiction not only to 
capture, but also to try accused "pirates" is asserted to lie with no other 
qualification than that the "forcible robberies, or captures of Ships or Goods" 
have occurred "upon the High Seas; "jurisdiction is defined then in territorial 
terms as if English Admiralty jurisdiction lay within foreign vessels and 
governed acts between foreign vessels as long as those vessels were on the 
high seas as defined in England. The underlying conception seems to be of 
overlapping national jurisdictions, not an assertion of exclusive British 
jurisdiction, since the acts amenable to British courts are asserted also to be 
"punishable by all Nations. " The nationality of the victim is expressly denied 
any role in the jurisdictional jurisprudence. Thus, the position taken by Justice 



British 19th Century Practice 239 

Story in the United States and rejected by the Supreme Court there as 
fundamentally inconsistent with the international legal order embodied by 
implication in the American Constitution, limiting the jurisdiction of courts 
deriving their authority from that Constitution, was adopted in the United 
Kingdom. 201 The logic by which that adoption occurred was precisely the 
mirror image of the logic of the young and weak United States: the spread of 
British jurisdiction by the assertion of the Parliament without regard to the 
international legal order. The confusion between British Imperial law and 
public international law, begun by Lushington's citation to a misconceived 
"piracy" of the Barbary states and other African societies as if there were a 
rule of public international law involved in construing a merely municipal 
bounty statute, was completed by the Law Officers of the Crown applying 
conceptions of English Admiralty jurisdiction and criminal law to the acts of 
foreigners against other foreigners within the solely municipally established 
Admiralty jurisdiction of British courts. Indeed, it is a possible reading of Dr. 
Harding's Report that British jurisdiction over "piracy" extended to 
"forcible robberies" taking place entirely within a foreign flag vessel with 
which the British had no connection at all. Only one case has been found in 
which British jurisdiction was actually applied to a transaction wholly within 
a foreign vessel outside of British territorial waters. 202 

The rest of Dr. Harding's Report of 1854, translating into policy guidance 
Sir Stephen Lushington's interpretation in the Magellan Pirates case of 1853 of 
the Bounty Act of 1850, reveals a conception of "piracy" far more restricted 
in scope than the general definitional terms of its first paragraph. 203 As with 
the American cases analyzed in chapter III above, it provides for action that 
can be rationalized on grounds far less radical, less dependent on assertions of 
"naturalist-universal jursidiction" than that paragraph. Obviously, there had 
been a complete reversal of position from the days of the Mohamed Saad case 204 
a decade earlier when the law seemed a serious impediment to expansive 
policy; it now seemed to be the position of the lawyers that the law could be 
used as a valid basis for expanding authority still further, but that it was 
doubtful policy to use it to its fullest extent; the general assertions of law go 
far beyond the advice as to the policy that could properly be pursued under 
the asserted law. Harding advised: 

3rd. When any reasonable causes of suspicion of the piratical Character of any Ship 
exist . . . Her Majesty's Ships may, on the High Seas and beyond the limits of local 
Jurisdiction of any Nation, compel such ship to stop, and exercise the right of visit on 
board any such ship for the purpose of . . . ascertaining her true character. 205 

Once satisfied that a foreign flag vessel is not dominated by "pirates" whatever 
might have happened on board, the British authorities should, according to 
Harding, leave her, although they might remain in the area to watch if 
suspicions persisted. In a port, the local authorities must be called in. 206 This 
latter provision seems inconsistent with the result in the Magellan Pirates case 



240 The Law of Piracy 

where, it may be remembered, the first seizure of the Eliza Cornish occurred in 
a port, and the authorities actually in control, Chilean rebels, supported the 
seizure. 207 By Harding's Report, if the rebels were to be considered the "local 
authorities" then there was no "piracy" in the Magellan Pirates case, but a 
denial of justice by those authorities or an exercise and possibly an abuse of 
their belligerent rights. If the more distant authorities of the recognized 
government of Chile were to be considered the "local authorities," then 
Harding's approach would seem to imply that British direct action against the 
Segredo was an intervention in internal Chilean affairs; those authorities 
should have been consulted first. The passages of Lushington's opinion 
referring to piracies "ashore" seem to have been thus overborne by Harding, 
despite the word "ashore" appearing in the Bounty Act of 1850. 208 This 
"correction" of the meaning of Parliament by the Crown's gloss in disregard 
of the interpretation given by the judiciary seems to raise constitutional 
questions, but they were not addressed at the time in any known document. 
The only detailed instructions contained in Harding's Report relate to the 
case in which British criminal jurisdiction was undoubtable: 

6th. British ships with their cargoes, and all persons on board of them, should, if met 
with on the High Seas, under whatever Flag, in cases of reasonable proof of the actual 
commission of piracy by those on board be secured and sent into the most convenient 
part of Her Majesty's dominions, with the necessary witnesses against them, to be there 
dealt with according to law. 209 

Why British courts and not the most convenient court of any sovereign if, as 
was asserted repeatedly, the "crime" is one of universal jurisdiction, is not 
mentioned. 

There are other problems in analyzing Harding's Report. For example, in 
defining "piracy" he refers to "forcible robberies." "Robbery" at English 
law to be "robbery" must involve the threat of force 210 and the word is used 
without the adjective "forcible" in the English statute of 1536. It is not clear 
what the function of the adjective is in Harding's Report. Similarly, the 
emphasis on property rights seems excessive: was not "murder" to be 
considered "piratical" any longer? But Harding's Report was an internal 
British document, not the basis for any definition of "piracy" outside of the 
British Navy, as far as can be seen, and it was the actions of the British Navy 
defended by the Foreign Office that become the evidence of public 
international law, not the unpublished Reports of officials whose views in 
their technical details did not form the basis of legal precedents in public 
international law. 

Applying the New Definition 

The Kwok-A-Sing Case. The one case applying to the full Harding's and 
Lushington's notions of universal jurisdiction was The Attorney- General of Our 
Lady the Queen for the Colony of Hong Kong and Kwok-A-Sing, an appeal by the 



British 19th Century Practice 241 

Government from the discharge of Kwok-a-Sing from custody in Hong Kong 
upon a writ of habeas corpus. 211 Kwok-a-Sing, a Chinese national, had 
apparently participated in a mutiny on board a French vessel on the high seas 
in 1871 , alleging that he and others had been kidnapped for slave labor in Peru. 
The prisoners had killed the captain and several of the French crew and taken 
the vessel back to China. Kwok-a-Sing took refuge in Hong Kong, where he 
was arrested by British authorities as they believed themselves authorized and 
required to do under the Treaty of Tientsin of 1858. 212 The article of that 
treaty requiring China to capture and punish "pirates" who plunder any 
British merchant vessel 213 was clearly not applicable because no British 
merchant vessel had been plundered by Kwok-a-Sing. The treaty contained 
no other term relating to "pirates," implying that "universal jurisdiction" 
and universal extradition were not in the contemplation of the drafters. But 
the Treaty did provide that "If criminals subjects of China, shall take refuge 
in Hong Kong . . . they shall upon due requisition by the Chinese authorities, 
be searched for, and on proof of their guilt be delivered up." 214 There were a 
number of technical problems not relevant for purposes of the current 
analysis. For example, the Hong Kong ordinance under which the British 
authorities acted was based on the continued validity of the prior extradition 
language in the Treaty of the Bogue of 1843, which had been superseded by 
the Treaty of Tientsin. 215 The key point for now is that the British Court in 
Hong Kong and the Judicial Committee of the Privy Council both decided 
that extradition of Kwok-a-Sing to China was not authorized or required by 
the Treaty of 1858 with regard to his acts on board a French vessel on the high 
seas; that if the very general language of that Treaty covered the acts of 
Kwok-a-Sing it was only if there were universal jurisdiction regarding 
"piracy," and if there were such universal jurisdiction, the jurisdiction of 
Hong Kong would suffice. The logic is identical with that of the 1864 
majority in In re Tivnan. 216 Kwok-a-Sing was held for trial as a "pirate" jure 
gentium in Hong Kong. 217 Whether he was ultimately convicted is doubtful; 
there was much questionable in the Privy Council's definition of "piracy "jure 
gentium, which rested entirely on a superficial reading of Sir Charles Hedges 's 
charge in Rex v. Dawson 21% and on the view that the carrying away of the ship 
itself to China was "robbery" rather than mutiny (which was conceded to be 
a matter for French law only). 219 The Privy Council carefully refrained from 
attempting to determine questions of evidence of intention that were not 
before it, indicated that without such evidence as would convince a jury of 
Kwok-a-Sing's felonious intent, he would not have been a "pirate" even 
under Hedges 's charge. The conclusion of the Privy Council was clear on the 
jurisdictional point, favoring universal jurisdiction in a situation in which 
such a position would allow a British colonial court to pass judgment on the 
acts of a foreigner against other foreigners in a known foreign vessel on the 
high seas. The logic by which that conclusion was reached seems wholly 



242 The Law of Piracy 

lacking unless regarded as implicit in the statement of the substance of the 
offense of "piracy" as given in its broadest form by an English judge in 1696, 
and the application of the logic of a case in 1864 under which universal 
jurisdiction was appealed to in a highly political case apparently to avoid 
extraditing persons who lacked the animum furandi, the "felonious intention" 
required by Hedges's charge. There is an irony in the evolution of two rules 
adopted to suit special circumstances to become a single general rule 
applicable in the absence of special circumstances, and it may be questioned 
that the legal logic would have been as persuasive to a non-British tribunal or 
a British tribunal at a time when British commercial interest and naval 
dominance and national pride were not so great. But this leads to mere 
speculation. 

The Law Officers Retreat. But while the Privy Council was applying 
conceptions of international law to expand British municipal law to the 
"piratical" acts of Chinese in French vessels on the high seas, the international 
legal order's restrictions on applying municipal law conceptions to the acts of 
foreigners beyond British legal interest were becoming more apparent to the 
Law Officers of the Crown and local administrators as a result of incidents in 
Latin America, Spain, the Malay Peninsula and in the Persian Gulf. 

In 1879 British shipping in the Gulf, then nominally ruled by the Ottoman 
Empire, was obstructed as it had been in 1820 by Arab fleets. On 2 December 
1879 the Law Officers addressed the question directly. The British 
Government was not justified, according to Drs. Holker, Gifford and Deane: 

On the ground of . . . the inability and unwillingness of the Turkish Government to 
prevent outrages on British subjects and British commerce in the Persian Gulf, in 
authorizing the commanders of Her Majesty's ships, against the wishes of the Turkish 
Government, to pursue the pirates and marauders in question in Turkish waters, and 
destroy their strongholds on the Turkish mainland. 220 

The justification for British action, if any, was not to be universal jurisdiction 
or any international legal rules regarding the suppression of "piracy," but 
reprisal: 

Should the Porte neglect to take any measures for the security of British trade in the 
Persian Gulf, Her Majesty's Government may, consistently with international law, 
endeavour to obtain from the Porte permission to act in Turkish waters against pirates 
and marauders, and should this permission be refused, and the Porte continue to allow 
piracy in its waters, Her Majesty's Government might not improperly make such 
negligence a ground for reprisals. 221 

Having an eye to the technical problems of applying the international law 
relating to "reprisal" in the circumstances, the Law Officers a year and a half 
later found a more satisfactory rationale: 

We do not regard the proposed measures as 'reprisals,' but simply as necessary for the 
protection of life and property, in the continued absence of the maintenance of authority 
by the Power on which that duty would more naturally devolve. 222 



British 19th Century Practice 243 

Action was apparently taken on the basis of this rationale in July 1881 
under an instruction from the Foreign Office (Sir Julian Pauncefote) 
to the Secretary of the Admiralty: 

I am accordingly directed by Earl Granville [the Foreign Minister] to request that you 
will move the Lords Commissioners of the Admiralty to . . . instruct [the British 
Naval Officers in the Persian Gulf] not to allow themselves for the future to be too 
much hampered by the 3-mile limit in pursuing and capturing pirates, especially as the 
Turkish authority on the coast is at many points of a very shadowy description. 

They will scrupulously avoid any collision with Turkish cruizers or troops, and they 
will hand over to the Turkish officials all offenders captured in Turkish 
jurisdiction. 223 

It seems clear that the word "pirates" was used by Pauncefote only as a 
descriptive word; the legal results that had been implied by Harding's 
Report in 1853 and its expansive view of British jurisdiction, did not flow. 
Similar limitations on the actual application of the rules of law asserted 
by Lushington and Harding were found when these natural law and 
universal jurisdiction conclusions confronted reality. Harding's Report had 
mentioned lack of any "lawful Commission or authority." Even accepting 
Lushington's and Harding's view as to the reach of concurrent Admiralty 
jurisdiction into the territorial waters of a foreign state, and ignoring 
Harding's apparent change of mind between the general assertions of his 
first paragraph and the far more sensitive and carefully limited policy 
suggestions in his third and succeeding paragraphs, 224 the British naval 
authorities found their scope for action restricted by questions of "lawful 
Commission" wherever they turned. The question was referred to the Law 
Officers of the Crown in connection with the seizure of a British vessel at 
anchor in a Venezuelan port by Venezuelan rebels in 1870. Accepting the 
Lushington-Harding definition of "piratical acts" and the reach of British 
jurisdiction in foreign territorial waters, assuming a universal jurisdiction 
over "pirates" to lie in British Admiralty courts, although a more certain 
jurisdiction existed resting on the nationality of the victims, 225 Drs. Collier, 
Coleridge and Twiss still had difficulties: 

[I]f the Maparari had no 'Commission of War ' or 'Letters of Marque, ' [the seizure] was 
an Act of piracy, the cognizance of which is within the Admiralty Jurisdiction of 
Nations, and as the Republic of Venezuela has declined to exercise her territorial 
jurisdiction, which is concurrent what that of the Admiralty of Nations, Great 
Britain may properly exercise the latter, and direct the Maparari to be seized wherever 
she shall be found upon the seas by a British Cruizer, and carried for adjudication on a 
charge of piracy before the most convenient British Court of Vice Admiralty. 

We assume that there has been no recognition on the part of Her Majesty of the 
insurgents ... as belligerents. 226 



244 The Law of Piracy 

Apparently, a group exercising "belligerent rights" could issue a "lawful 
Commission" to commit "acts of piracy," and such acts if performed under a 
belligerent's commission would not carry the legal result of "piracy" 
whatever Lushington's reading of the intention of the Bounty Act or 1850. 
The key was to be British "recognition,'' a key that if applied to the Barbary 
states and North African societies referred to by Lushington in the Magellan 
Pirates case, would have reversed his dicta that they were "piratical." 
"Recognition" was apparently viewed as a political act of discretion; the Law 
Officers clearly imply so in their final paragraph quoted above, which 
envisages the possibility that "recognition" had been granted and that the 
granting or not of "recognition" as belligerents to the Venezuelan rebels was 
an act performed independently of their analysis of the law by the political 
branch of the government, the Crown. Thus, the fundamental approach of 
the Law Officers in 1870 seems to have been "positivist" in the Gentili 
sense. 227 The legal label "pirate" was regarded a thing possible to attach as a 
matter of policy, not of law, even when the roots of the violence constituting 
the "act of piracy " were political ambition and not private gain. "Piracy" for 
private ends appears to have been left to the criminal law of individual states 
providing for the protection of property rights defined by overlapping and 
consistent municipal laws, including the right to be secure in a vessel flying 
the flag of a prescribing state. 

On the other hand, when this frankly positivist, policy-oriented view was 
adopted by France in connection with the Spanish insurrection of 1873, the 
Law Officers of the Crown took an even more restrictive view of "piracy," 
arguing that some underlying international law set limits to the discretion of a 
state to classify rebels as "pirates. " The imperatives of the fundamental rules 
of the international legal order were coming to be seen as inhibiting 
interference in the political struggles of other states and limiting the 
"standing" of a state to enforce even public international law when the 
incident is not linked more or less directly to the legally protected interests of 
the interfering state. Earl Granville, Secretary of State for Foreign Affairs in 
Gladstone's Cabinet 1870-1874, asked the advice of the Law Officers, Drs. 
Coleridge, Jessel and Deane, about the incident, which involved Spanish 
insurgents. At issue was France's position that third states have "the right of 
treating the rebel Spanish ships as pirates . . ., under the general law of 
nations." The Law Officers replied: 

The Spanish rebel ships have not committed and are not cruizing with the intent to 
commit any act which a foreign nation can properly call or treat as a piratical act. . . . 
[Therefore,] they cannot properly be visited or detained or seized unless the 
Government which orders or approves of such visit, detention or seizure is prepared to 
support the Government at Madrid against all persons and parties who may be in 
insurrection against that government. 228 



British 19th Century Practice 245 

While the conclusion seems to be overstated somewhat, the point is clearly 
made that once the rebellion has reached a certain point, Spanish classifica- 
tions do not matter and international law directly would require the rebels to 
be treated as belligerents; that the insurgents would be justified in treating the 
British (or French) as belligerent allies of the defending Spanish government, 
and exercising belligerent rights as enemies against British (or French) 
commerce with Spain, rather than being restricted at law to exercising only 
those rights that public international law gives to belligerents to exercise 
against neutral commerce. There is no mention of British "recognition" as 
the threshold at which the law of war comes into play, and it seems to be 
assumed that that great area of law is brought into play by an objective 
examination of the facts. The approach taken by the Foreign Office with 
regard to the Greek insurgents of the 1820s was thus confirmed 229 and the 
limits reality fixes on legal policy even within a basically positivist 
framework. The "lawful Commission" phrase in Harding's Opinion of 1854 
was turning out to be less capable of policy manipulation than might have 
been expected. 

The Empire Advances 

The Selangor Incident. At the same time, under the instructions issued by the 
East India Company and the Colonial Office 230 after the Mohamed Saad 
case 231 the limits the international legal order in its most fundamental sense 
places on the legal power of statesmen to use technical, not analogous, 
emotive legal concepts within the order, such as "piracy," to justify political 
action were becoming equally apparent. It would be tedious to repeat the 
primary research done by others where the legal points are adequately 
covered even though not the direct focus of the historical analysis, but one 
short recitation based on excellent research can illustrate the point 232 and a dip 
into some primary sources of the early 1870s that have been misconstrued or 
ignored by historians will make the argument complete. 233 

The Mohamed Saad decision was rendered by a British court in Penang, a 
British colony at the northern entrance to the Straits of Malacca, on 26 
October 1840 and the local authorities were instructed as to policy in light of 
that decision on 31 December 1841 . In 1851 a Chinese junk apparently owned 
or financed by merchants based in Singapore 234 was captured by the Malay 
Sultan of Trengganu. At the time, Trengganu was regarded as legally 
subordinate to Thailand but treated by the British colonial officials in most 
ways as if an independent state. 235 The Sultan of Trengganu held a brief trial 
of the survivors of the junk, and executed them in his own territory as 
"pirates." The British colonial officials investigated and concluded that the 
conviction rested on insufficient evidence; the British demanded $11,000 in 
compensation for the Singapore merchants whose investment in the junk's 
voyage had been lost. On 9 October 1851 the British colonial officials 
threatened to seize and destroy the Sultan's property in Trengganu if he did 



246 The Law of Piracy 

not pay the sum demanded. The matter was referred by the local British 
authorities to their superiors in India, who sought legal advice. The advice 
was that the seizure of the junk violated international law and that the 
demand for reparations was well based. When the Sultan still refused, the 
Supreme Government 236 backed down, conceding that the Sultan's adminis- 
tration of Trengganu law in Trengganu was prima facie no concern of the 
British authorities, and that a judicial decision in the face of conflicting 
evidence could not be clearly rejected as a denial of justice or otherwise 
improper. The Government of the Straits Settlements was reproved for 
endangering friendly British relations with Thailand. In fact, there is some 
evidence that the junk had been seizing Trengganu traders' ships and property 
without any legal warrant in British or Trengganu law, and that it and other 
junks were closely connected with merchants or other agents in Singapore. 

In December 1855, in response to complaints of "piracy" by similar 
vessels with similar connections, Mr. E.A. Blundell, the Governor of the 
Straits Settlements, recommended to the Supreme Government that British 
ships be empowered to seize suspected "pirates," "not . . . hampered with 
common law definitions of piracy. " This request, amounting to an attempt 
to apply the British Imperial law definition of the 1853 Magellan Pirates case 
as a legal basis for political action in disregard of the more secure 
"overlapping municipal law definitions" approach implicit in the 
Mohamed Saad case 237 and the definitions of the "law of nations" that Dr. 
Lushington and Dr. Harding were trying to translate into assertions of 
public international law between sovereigns, was rejected by the Supreme 
Government. Blundell was advised that the Supreme Government felt it 
had no legal power to authorize "pirate-hunting" without regard to the 
limits of jurisdiction and definition contained in English law. Thus, when 
legislation was finally enacted to authorize British ships to act against 
suspicious vessels it was confined to vessels in the ports of the Straits 
Settlements and to British flag ships on the high seas. 238 

The most enlightening correspondence in the Malay area occurred when an 
ethnic Chinese merchant in Penang in 1871 reported that his junk had been 
"pirated" and the crew and others murdered by nine "passengers" who then 
took the vessel to port in the Malay state of Selangor. Whether the offense if 
measured by English law would have been "piracy" as defined by the 
traditions and cases codified by Hale and developed in the cases analyzed 
above, or "mutiny" because occurring in a single vessel and wholly governed 
by the law of the flag state of that vessel, and not international law or British 
Imperial law at all, and whether "piracy" at English law includes the crime of 
"mutiny," were not considered in the correspondence arising out of the 
incident. Instead, the word seems to have been used in the vernacular sense 
attributed by Dr. Lushington to the Parliament in the Bounty Act of 1850. 
Thus, the problems of jurisdiction that arose illustrate the limits that the 



British 19th Century Practice 247 

international legal order put on British Imperial law and the thought 
processes by which the British translated a term from English criminal law, 
via the "law of nations" conception of "natural" criminal law that all states 
were obliged by reason and morality to adopt, through British Imperial law 
attributing an underpinning in the international legal order to actions 
determined on a parochial policy basis by British officials alone, to an 
autointerpretation of asserted rules of general international law, to the 
enforcement of "international law, "obliging a Malay state as a subject of the 
international legal order to obey British demands that it adopt rules of 
municipal law in British interest. 

Shortly after the taking of the junk was reported, the Acting Governor of 
the Straits Settlements, Colonel Sir Archibald E.H. Anson, ordered 
Commander Bradberry as captain to take the Colonial Government's steamer 
Pluto with British police on board to search for it. On 28 June 1871 the Pluto 
anchored about three miles off the mouth of the Selangor River and a boat 
was sent upstream to take a letter from Anson to the Sultan requesting help. 
Arriving at the Malay village, Bradberry found the "pirated" junk there and 
her cargo already partially distributed in shops and stores maintained by some 
Chinese merchants. He "boarded her and took six prisoners, who [sic; 
whom?] we left on board the junk in charge of Mr. Barnum and Mr. 
Daniels. . . . We now returned to the [Pluto] accompanied by Rajah 
Moossa . . . and steamed ... up the river. " 239 Bradberry proceeds: 

[HJaving got the full permission and assistance of the Rajah [Moossa] to re-ship the 
cargo on board the junk, as also to capture as many of the pirates as possible; . . . we had 
taken [by 9 P.M.] three more prisoners . . .; on capturing the fourth — evidently one of 
the head pirates . . . [a] Chief told us to give him over to his charge . . .; we did so, and the 
prisoner escaped . . . pursued by Mr. Cox; this excited the Malays, who immediately 
drew their krisses . . ., 240 causing most of us to take to the boats . . . leaving . . . Captain 
Bradberry and Mr. Cox, still on the beach; the boat now returned . . . and the remaining 
party retired . . .; shortly after our return on board two guns were fired, and then all was 
silent. . . . Rajah Moossa gave us all the assistance possible, and would have done more 
had it not been for him being in bodily fear of Rajah Mahdie. 241 

1 P.M., . . . proceeded, with junk in tow, for Penang, where she now lays [sic; lies?] in 
safety. 242 

This report, signed by Commander Bradberry, is significantly different 

from the report of the same incident by Mr. Cox. It seems clear that 

Bradberry 's general language assumes a legal effect for parts of the 

transactions described that was not objectively intended by the Malays 

involved: 

After . . . hesitation, Rajah Moossa allowed us to remove the goods, and remained by us 
until 7 P.M., during which time the goods were carried from the different Chinese shops 
to the beach, and from thence on board the junk. . . . [T]hree Chinese pirates . . . were 
arrested . . . and were at once dispatched on board. . . . [A]nother Chinese pirate was also 
arrested, and, . . . was rescued by a Malay Chief. . . although pursued by me. . . . [That 



248 The Law of Piracy 

Chief, a Rajah,] collected a large body of armed Malays, who drew their weapons . . . 
and it was with extreme difficulty . . . we managed to reach the vessel ... as numbers of 
the police and crew of the steamer were obliged to swim. . . . Two guns from Rajah 
Mahdie 's stockade . . . were fired at us at intervals. . . . Rajah Moossa called on board at 8 
A.M. . . . [and] told me . . . that Rajah Mahdie . . . and [three named Chiefs] were all 
acting in opposition to him. 

I believe that six of the Chinese pirates are still at Salangore, under the protection of 
these Chiefs, who . . . have connived at all their actions. 243 

The probability that those whom the British officials were calling 
"pirates" were actually people with a license to raid shipping in the waters of 
Selangor and possibly at sea, and that license was issued by nobles with both a 
claim to royal authority and the reality of legal and political power in 
Selangor despite the adverse claim of the Sultan "recognized" by the British 
and of his son, Rajah Moossa, is confirmed by what happened next as reported 
by Commander Robinson of H. M.S. Rinaldo: 

In consequence of a requisition from you on the 30th [of June] ... I started ... to 
Salangore, for the purpose of seizing the six pirates still at large . . . and to take such 
measures as may seem best for the punishment of those Malays who resisted the Colonial 
Officers and men in their attempt to secure the pirates. 244 

[Anchored the Navy vessel H.M.S. Rinaldo] off the town of Salangore. . . . Sent boats 
away manned and armed to search both sides of the river and vessels at anchor. 245 

Lieutenant Maude of the Royal Navy led a party ashore and found Rajah 
Mahdie. Maude relates that Mahdie agreed to return with him to the Pluto, 
which was anchored with the Rinaldo at the mouth of the river, but the 
description sounds more like an arrest: 

The Rajah went between the boat and the small-arm men, with about twenty men around 
him. He was told that the boat was ready, when he replied that he would not go now. 246 

Shots were fired against the British party and a scuffle ensued. Maude was cut 
on the wrist by a kris; six British men were wounded, one mortally; Mahdie 
escaped. Robinson continues: 

I decided to return to Rinaldo . . . and to send Pluto to Penang with wounded. 

I . . . took the responsibility of incurring all risks for the sake of punishing the pirates for 
their treacherous attack . . . and for teaching them to respect the flag for the future. 

[The next morning at 6:15 a.m.] on the southern entrance of the river, fire was opened 
upon us from these forts . . . immediately answered by the Rinaldo; . . . [we] rendered 
their chief defences untenable. 

At 5:30 [p.m.] ceased firing, after having silenced all the forts and partially burnt the 
town ... on the opposite bank. 

The Pluto returned yesterday at 4.30 P.M. from Penang with . . . the whole of [British] 
disposable force. . . . [The following morning] no return was made to our fire ... so after 



British 19th Century Practice 249 

a little . . . the disembarkation soon commenced. . . . [W]e spent the day in utterly 
destroying this nest of pirates. The town of Salangore is completely burnt down. . . . Had 
it been possible to make terms with any one, I might have spared the town on the 
condition that the six pirates ... be given up. I would also have inflicted a fine to pay for 
the expenses of this expedition. Failing this we have done all the damage we could. 

A flag of truce was shown at 10 A.M. at the landing-place . . . but those who displayed it 
proved to be people of no importance, whose object was simply that a few houses on that 
side be spared. 247 

The "nine" men apprehended by the British force under Commander 
Bradberry were taken to Penang and charged before the British colonial 
court with murder and piracy. 248 There seems to be no record of their trial, 
if any, in the available documentation. The British advised the Sultan on the 
appointment of another of his sons, Tunku Dia Oodin, as "Agent" with full 
powers to rule in Selangor, and the British found themselves deeply 
enmeshed in the complicated internal politics of that sulanate. 249 Lord 
Kimberley approved "general countenance and support" for the Sultan and 
Oodin, but drew the line at "material assistance." 250 Nonetheless, 
Commander obinson had in the meantime instructed Commander 
Blomfield of H. M.S. Teazer that: 

The object [of our Naval presence] is to prevent Rajah Mahdie from returning to 
Salangore, and to support by your presence the friendly Malays. 

It would be advisable to explore the river of Salangore as far as practicable. 

Armed proas [prahus] of a suspicious nature in that river you can capture. 251 

The British Naval authorities supported Commander Robinson in this: 

[N]o action should be less energetic and decisive, to rid the sea of intolerable and 
merciless Malay pirates, than that adopted by Commander Robinson. 252 

The Legal Tangle. The legal questions were raised by the former Chief 
Justice of the Straits Settlements, now retired, Sir Peter Benson Maxwell, in a 
letter to the London Times dated 9 September 1871. 253 Relying on local 
newspaper accounts and, presumably, the private correspondence of friends 
in Southeast Asia, Maxwell reviewed the entire procedure. He construed the 
first mission sent by Col. Anson, two police officers and 20 men in the Pluto, as 
a party sent with a letter to the Sultan, "requesting, apparently, the 
extradition of any of the malefactors who might be found in his territories, 
and the restoration of the captured cargo." The conduct of Raja Musa 
[Moossa] in response, in his view, "was irreproachable." The first problems 
arose, in Maxwell's opinion, when "a seventh Chinaman was pointed out by 
one of the junk's crew as a member of the gang; and he was at once arrested. " 
Maxwell went on: 

But the man appealed to Rajah Mahmud, and this subordinate [to Raja Musa] officer 
procured his liberation, partly, according to the newspapers, by threats, and partly by a 



250 The Law of Piracy 

promise to produce him at a future time if required. Hardly, however, had he been set at 
liberty before the Straits policeman pursued and attempted to recapture him. Mahmud 
would not permit this. . . . 

and the scene with drawn krisses and a retreat by the Straits police under Mr. 
Cox was the result. Maxwell then put the situation into a legal context: 

Whether the Malay chief [Mahmud], in requiring the release of the Chinaman was 
protecting an innocent man or screening a heinous offender does not appear; but let us 
assume . . . the latter. ... As to the attempt of the colonial police to arrest the man on 
Malay territory, it is hardly necessary to observe that they had no more right to do such 
an act there than a French police agent has to arrest a Communist 254 in the streets of 
London; and it may account for the irritation which the Malays displayed by retaining 
some of the merchandise. 

It is noteworthy that Maxwell nowhere uses the word "pirate" as a legal 
word of art; indeed he treats the initial transaction as a routine matter of 
international cooperation in the rendition of accused criminals, with the 
Malay state of Selangor considered as a matter of law fully equal to Great 
Britain, and Britishjurisdiction over the escaped "malefactors" as resting on 
their violation of the law of England in a ship flying the British flag. 

Maxwell seems to have seen printed Colonel Anson's actual instruction to 
Commander George Robinson, Captain of the Rinaldo: 

The Acting-Governor, on being apprised of what had happened, addressed a request to 
the commander of the Rinaldo 'to arrest the pirates who were still at large' in Salangore, 
and 'to take suitable measures for the punishment of the Malays who had resisted the 
colonial officers in their attempt to secure the pirates'. 

The word "pirates" is Anson's, not Maxwell's. 

Before proceeding with further legal analysis, Maxwell raised the question 
of legal authority in Raja Mahdie and Musa's brother-in-law, Tunku dia 
Oodin: 

[F]or the last four years a private war has been going on in a part of the Sultan's 
territories between Mahady [sic] on the one side and Tunkee dia Udin [sic], the 
son-in-law of the Sultan, on the other; and that the latter, who had been appointed a 
Governor by the Sultan, had had his appointment subsequently revoked. . . . The Sultan 
always abstained from interference in the dispute. 

As Maxwell reconstructed the later events, 255 the Sultan's "renewal" of 
Oodin 's commission was imposed by the British through an ultimatum to 
which the Sultan bowed most reluctantly; the legal effect of the transaction 
was thus dubious in Selangor's constitutional law whatever the British 
interpretation of Oodin's authority. 

Maxwell argued strongly on legal grounds that the entire transaction by 
Anson should be condemned: 

In the first place, what power has a colonial governor to arrest offenders in a foreign 
country, and to punish the subjects of that country who obstruct him there? Such an act 
by the armed force of a State is an act of war; and if a colonial governor has not power to 



British 19th Century Practice 251 

make war, how will Colonel Anson justify this hostile descent on the territory of a 
prince with whom England was at peace, to arrest not only criminals who had taken 
refuge there, but even subjects and officers of the prince? . . . [W]as not the descent of 
armed men on Malay soil for [Rajah Mahdie's] arrest . . . the threat that force would be 
used to deprive him of his liberty, violence enough to the man and his country? How 
much further were we privileged to carry hostilities before the Malays acquired the 
right of defending their officer and repelling us? 

After then questioning Anson's judgment as to the wrongfulness of Mahdie's 
resistance and the justifiability of a punitive response, Maxwell turned to the 
role of international law and the respective places of Great Britain, Selangor, 
and the law of "piracy" in that system: 

It may be said that the Malays are not within the pale of civilized nations; indeed, one of 
the local papers rings the changes on the "piratical" tendencies of Salangore, and 
Captain Robinson puts his finger on a passage in Horsburgh's "sailing directions," in 
which the old navigator describes the place as having "always been a piratical haunt." 
He also speaks of some vessels which he found and burnt there as "piratical" war prahus. 
Even if all this were true, it would be enough to answer that Salangore was not attacked 
because it was a piratical haunt. Neither its Government nor its inhabitants had 
committed any act of piracy. But it is not true that Salangore is "a piratical haunt.". . . 
There is no such thing as a piratical state there — not even, I believe, such a thing as a 
prahu armed and manned as a professional pirate. Unquestionably murders and 
robberies are occasionally committed in the Straits of Malacca by Malay and Chinese 
malefactors, who are the subjects or take refuge in the territories of the Rajahs of the 
Peninsula; but what happens then? We have extradition Treaties with several of those 
States, and the criminals are delivered up to justice. It was under such a Treaty, made in 
1825, that the demand for the Chinese criminals was made in the present case. 256 Such 
demands are by no means rare; they are usually attended to with respect and even 
alacrity, and the conduct of [Raja Musa] shows that there was no disinclination on the 
part of the highest authority of the State to comply. 

Maxwell was furious about Robinson's military action: 

Such executions are not glorious even when they are necessary; for what can Malay 
stockades and guns do against the ships and artillery of Europe? But when they are not 
necessary, when, on the contrary, they are unjust and wanton, they . . . can bring only 
discredit and hatred upon us, and if they are not sternly repudiated by our Government 
the face of England, in Oriental idiom, will be blackened, and her name will stink. 

This was an attack not to be ignored. The first response was another letter 
to the Times signed "Singaporean," apparently arguing that the "piracy" in 
the area was supported by one of the Rajahs competing for local power in 
Selangor and that the British interest in trade and the natural law protecting 
private property justified intervention to eliminate that "piracy" and support 
the "legitimate" Sultan, looking forward to Selangor being opened to further 
trade in due course as a worthy result of Col. Anson's action. 257 Faced with 
what seemed a conflict of factual assertions, the Times editors refused to take 
sides between "Singaporean" and Maxwell. In their opinion, the issue really 
was only whether the destruction carried out by Commander Robinson on 
Col. Anson's orders was disproportionate to the military need. It seems to 



252 The Law of Piracy 

have been assumed that British interference was in principle justifiable 
because "these rebels, already in arms against the Throne, interfered, and 
attacked the British ships into the bargain." 258 

Maxwell, responding directly to "Singaporean" in the Times, apparently 
before he had seen the Times lead article, 259 rephrased his legal argument: 

I will take [the facts] as ["Singaporean"] would have them . . .: — A demand was made 
by one State on another for the extradition of a criminal refugee; the man is arrested and 
delivered up, but he is rescued by the lawless or insurgent subjects of the surrendering 
State, and the officers of the demanding State are insulted, threatened, and fired at. The 
latter Power, without complaining of the wrong done or demanding of the ruler the 
punishment of its guilty subjects, instantly dispatches a man of war to arrest, on its ally's 
territory, both the rescuers and the rescued; and this force, because it meets resistance in 
executing these measures, burns down the town in which the culprits have shut 
themselves up, and which they hold in defiance of their Sovereign's authority. And 
further . . . the invader finishes off by requiring the Sovereign of the invaded territory to 
appoint the nominee of the former his Maire du Palais. 260 Now, call that Sovereign the 
Queen of England, call the soil British soil, and call the man of war American, and I 
should be glad to know in what temper public opinion in England would listen to 
Jonathan's [Uncle Sam's] protestations that he had 'never intended to make war' on 
Great Britain, but only to arrest on her territory criminals and their accessories after the 
fact, a piratical, rebellious, and insolent crew; that he had 'intended to settle the matter 
amicably, ' and would have done so if he had not been resisted; and that as to the Maire du 
Palais, it was an admirable institution, which would 'work well' in 'opening up the 
country.' 

... I expect to hear, of course, that the rules of international law are not applicable to 
petty Malay States, just as I have often heard it said that our municipal law was too good 
for our Oriental subjects. But if international law be merely the expression of sound 
international morality, 261 why should we refuse to Malays the justice and consideration 
which we accord to greater Powers? ... I trust that we have not one measure for the 
strong and another for the weak; and that, while ready to push conciliation and 
concession to all reasonable lengths in the West, we do not thirst for some compensating 
glory in the destruction of cheap sheds . . . and, I suppose, cheap lives in 'the beneficent 
climes of Malayria.' 262 

This eloquent plea that the normal rules of international law, even if 
regarded as "moral" law merely, be applied between equal sovereigns 
whatever the military or political inequalities (as they apply between Great 
Britain and Denmark without question in Europe) even when the government 
of the state that is a treaty partner or protector of "pirates" is a Malay Sultan 
or a claimant to his authority, while of doubtful persuasiveness to the 
race-proud English populace and possibly even the editors in 1871 of the 
London Times, 263 had some impact on the more sophisticated British 
authorities who had to deal with political realities in the Malay Peninsula. 
Col. Anson on 24 October 1871 sent a long dispatch to Kimberley giving his 
response to Maxwell's first letter, which apparently had not reached Anson's 
desk until the 19th of that month. As might be expected, he used the word 
"piracy" in a general political sense with no specific legal content: 



British 19th Century Practice 253 

[TJhere was no intention on the part of: this Government to wage war upon, or to 
interfere injuriously with the country of Salangore; . . . the question at issue was 
treated purely as one of piracy, and that this Government, when it found that the junks 
and pirates were at Salangore, cooperated with the Sultan's officers under . . . Rajah 
Moosa . . . in capturing some of the actual perpetrators of the crime on board the stolen 
junk; and that Captain Robinson . . . punished the rebellious Rajahs . . . who had 
interfered to support the pirates against the authority of the Sultan, and who had fired 
upon the . . . 'Rinaldo.' 

With regard to Sir Benson Maxwell's statement that the police 'had no more right to do 
such an act there, than a French police agent has to arrest a communist in the streets of 
London' putting aside the absurdity of the comparison, I presume it could hardly be 
objected to, that if a nobleman came to interfere with the Government official who had 
just handed over the communist to the French police agent in the streets of London, and 
assisted the communist to escape, the police agent would be justified in assisting the 
Government officials in running after and recapturing him; and this corresponds to what 
was really done by the police at Salangore. 264 

Apparently Commander Robinson also conceived of "pirates" as an 
undefined class that might include rebels or others who interfered with 
British actions in the Peninsula. In his report to Col. Anson regarding 
Maxwell's letter, he wrote: 

The war proas [prahus] are called 'piratical' by me because they sided with the pirates, 
and fired upon the 'Rinaldo' while the ship was returning the fire from the forts. 265 

Commander Blomfield 266 of H.M.S. Teazer reported on his entire 
proceeding to Vice-Admiral Kellett after Maxwell's first letter had been 
published in London, but before news of it reached Anson. He too used the 
word "piracy" in a political sense, apparently referring generally to Malays 
or Chinese who obstructed British trade in Selangor without the direct 
commission of the Sultan: 

The object of my mission . . . was to convey a letter . . . demanding that the remainder of 
the pirates ... be given up to H.M.G. . . . also that a ruler in whom our Government 
could place implicit confidence should be appointed. 

These demands were made with the 'Teazer V guns bearing upon the Sultan's palace, 
and an answer insisted upon within twenty-four hours. 

[T]he Sultan told us . . . that the pirates had already been given up at Malacca, with the 
exception of one Chinaman, who had died, and whose queue was sent in proof. 

[I]t appeared to me a good opportunity for opening up the rivers, and substituting law 
and order for piracy in the Salangore coast, by giving countenance and active support to 
a Governor of our own recommendation. 267 

Without resolving the question of who was or was not a "pirate" in the 
contemplation of British naval authorities, 268 Kellett instructed his subordi- 
nates "that no such expeditions be undertaken in future without reference to 
me, unless immediate action is absolutely necessary, in which latter 



254 The Law of Piracy 

case . . . diplomatic and political affairs be carefully avoided." 269 Of course, 
Col. Anson was the chief British political officer in the area in 1871 , and it is not 
clear precisely what this instruction was actually intended to accomplish. 

Dropping the Legal Facade. The impact of the Rinaldo affair was in fact great on 
the political officers of the Government of the Straits Settlements. They never 
did admit error in the actual case, although it is possible to see in their rewriting 
of legal relationships, having the Sultan of Selangor appear the undoubted 
sovereign there, cooperating fully in attempting to discharge his supposed 
obligations under the Treaty of 1825, and the British acting throughout merely 
as his agents or with his permission, a hinted confession that absent these 
classifications of fact the episode was of dubious legality regardless of the label 
"piracy." It would be tedious in this place to delve more deeply into the 
troubled affairs of Selangor and the complications that led to overt British 
intervention in 1874 and the conquest of the sultanates of the Malay Peninsula. 270 
But sensitivities were raised by the Rinaldo affair; the local correspondence that 
followed it regarding "piracy" and international law clearly assumed the 
equality as sovereigns of Great Britain and each Malay sultanate. 

There were several illustrative incidents between 1871 and 1874 in the 
Straits of Malacca and the waters of the West coast of the Malay Peninsula, 
including an attack on the ship Fair Malacca on 12 December 1872, which 
Governor Sir Harry St.G. Ord refused to call "piracy:" "I do not find it 
clearly established . . . that this vessel was attacked in the open sea, or under 
circumstances which would justify a charge of piracy against the junks." 271 
The Solicitor-General, David Logan, rendered an opinion to Governor Ord 
on 22 December 1872 that the firing on the Fair Malacca "cannot be said to have 
been committed 'where all have a common and no nation an exclusive 
jurisdiction,' i.e., upon the high seas," and that therefore it cannot be 
classified legally as "piracy. " 272 Ord asked Logan to reconsider his opinion on 
the ground that the authority of the Sultan had been effectively superseded by 
anarchy. 273 Logan replied that the British were justified in looking into the 
matter and taking the suspicious junks in to the nearest British port for a 
judicial investigation, but concluded: "I am not disposed, without more 
reliable evidence, to decide that these junks were piratical, as such a 
conclusion, if correct, might justify any man-of-war in dealing with them in 
the most summary manner on the spot." 274 One of the junks was ultimately 
released for lack of evidence, and the other condemned in an in rem proceeding 
by the British court. Nobody was tried for "piracy;" all the accused were 
released. 275 

On the other side, a British naval commander named Denison reported to 
Ord and Vice-Admiral Sir Charles Shadwell, the Commander-in-Chief of 
the China Fleet succeeding Vice-Admiral Kellett, from the Zebra in Penang, 3 
January 1873, that he had boarded a Chinese junk in a Malay river in the 
following circumstances: 



British 19th Century Practice 255 

[A]s there was nothing but anarchy in the place, any vessel [falsely] flying a recognized 
flag of whatever nation was a pirate. I merely came as a policeman of the seas to seize a 
pirate, and . . . would not interfere in their dissensions. ... I took two . . .junks and left 
them four, not being able to prove their having committed piracy. 

I then addressed the head man of the Rajah . . . that I did not come from the Governor, 
but ... I only came to seize the junks that happened to be in his dominions, as he could not 
help us. 276 

The political situation changed most dramatically with the arrival in the 
Straits Settlements of a new Governor, Sir Andrew Clarke, who thought like 
Denison and did not seem to think it necessary to consider legal advice as to 
the definition or legal results of attaching the word "piracy" to anything. His 
use of the word "piracy" as if to justify the most extreme military measures 
entangled him and his successors in the very web of Malayan dynastic and 
other power struggles that they had been most strongly instructed to avoid. 

The trail into this thorny thicket seemed smooth as the Governor 
apparently felt that his knowledge of the legal qualifications and results of the 
term "piracy" were adequate, and he got hopelessly confused only when 
trying to enforce what he believed without legal advice was in fact the law. 
On 1 1 January 1874 there was a sea-borne attack on the land-based lighthouse 
at Cape Rachado in Selangor. The situation was described by Governor 
Clarke as follows: 

A piracy . . . has recently been perpetrated ... in the territory of Salangore. 

[T]he men (or, at least Several of them) who committed this act, came to Malacca, and 
nine have been arrested, of whom one has turned Queen's evidence. 

The evidence ... is most conclusive, but a doubt might possibly arise ... as to our 
jurisdiction, and it appears to me that the safest course will be to deliver over the 
prisoners to the Governor or Viceroy of Salangore, T.D.O. [Tunku dia Oodin], in 
whose territory the crime was committed. 

[T]hese bona fide acts of piracy by Malays (which must be looked upon as very distinct 
from the lawless acts by Chinese, which have been lately put down . . .) are again 
becoming frequent, . . . supported now by the sons of the Sultan. 

I . . . [suggest] the delivery of the pirates whom we have in custody to T.D.O., who 
demands them from us, under the Indian Extradition Act, and providing him with 
evidence, require him to try them on the spot. 

I . . . [propose] to insist on [the Sultan's] coming on board [a British gunboat], while I 
shall require T.D.O. to make a prisoner . . . of his brother-in-law Rajah Yacub . . . and 
other suspected Chiefs. . . . T.D.O. will doubtless require support, and material 
assistance . . . if any of the pirates should resist. 277 

It appears that the new Governor was unfamiliar with the legal analyses of 
Judge Sir Benson Maxwell and Solicitor-General David Logan and was using 



256 The Law of Piracy 

the word "piracy" to refer to mere "robbery" by the law of Selangor, or by 
what he would have liked to be the law of Selangor. But calling it "piracy" 
seemed to him to give the British an authority to act, somehow, in disregard 
of the inhibitions international law would place on one sovereign in its 
dealings with another. There seems to have been no doubt in Clarke's mind 
that the "piracies" he referred to were authorized by political figures with 
some claim to legal authority in Selangor (the Sultan's sons), that the incident 
occurred entirely in the territory of Selangor, and that Selangor law, not the 
law of the Straits Settlements or international law, applied to the individuals 
accused of the "piracy." There seem to be no precedents or logic to support 
this translation of a vernacular usage with no specific legal meaning into a 
legal term, and it would appear analytically sounder to regard Clarke's usage 
as not indicating a legal sense at all, but an emotional excuse for political 
action in disregard of the law. 278 

The delivery "demanded" by Tunku Dia Oodin had, of course, been 
suggested by British officials, and the references to the Extradition Act, being 
fundamentally irrelevant to a demand from one sovereign to another, where 
treaty controls and not the legislation of either sovereign, are clear 
indications that the forms of law being followed were those of British 
Imperial law, not public international law. 279 As to the law of Selangor, 
Clarke sent two "Commissioners" "to see that the enquiry [by Tunku Dia 
Oodin] is properly conducted, and to support T.D.O.'s authority." 280 

Apparently, Governor Clarke began to have some doubts about the legal 
aspects of these proceedings, and explained his actions (with some gloss that 
seems disingenuous in attributing to Tunku Dia Oodin an initiative that seems 
almost certainly to have come from Clarke himself) in a way that made the 
entire affair a question of policy alone, prompted indeed in part by doubts as 
to how a British tribunal would handle the questions of jurisdiction and 
definition: 

[Although the attack on a lighthouse in Salangore was clearly piracy, jurisdiction was in 
doubt] as it was not clear that the crime had been committed on the high seas. 

Even were a conviction certain, I felt that any punishment inflicted by us, and in our 
territory . . . would be barren of any permanent deterring influence or beneficial result. 

I desired to show the [pirates] that they could not be screened from punishment by the 
authority and influence of [Malay Rajahs]. 

I consequently gladly availed myself. . . of the proposal made by T.D.O. ... to demand 
these men under the terms of the Treaty [of 1825], as well as under the provision of the 
Indian Act for the Extradition of Offenders. 

I determined that the authority of the Tunku should yet be covered by still higher 
authority, and . . . the Sultan should be the chief responsible agent and approving 
power. 281 



British 19th Century Practice 257 

In fact, the "demand" from Tunku Dia Oodin was a "request" that cited the 
British legislation but not any treaty, and came in reply to a British initiative. 
It said: 

Sir, In reply to your letter of [2 February 1874], I do hereby request that the nine Malay 
subjects of Salangore State, now in custody at Malacca, and alleged to be concerned in 
an act of piracy in the territory of Salangore, may be handed over to me under the Indian 
Act No. 7 of 1854, to be tried and dealt with according to law. 282 

In fact, to all the Malays involved, it seems very doubtful that any law was 
being applied to the incident other than British law, either a version of the 
British municipal law of piracy or British Imperial law defining "piracy" in 
ways insupportable by reference to the normal sources of public international 
law or the constitutional aspects of the legal order creating distinct and 
legally equal international persons in the "states" of Selangor and Great 
Britain as propounded by Maxwell. There can be little doubt that the actions 
in Selangor called "piracy" by Clarke were part of a continuing "war" in 
Selangor, with the "pirates" actually part of the military arm of a faction 
which controlled substantial territory and population. 283 To Thomas 
Braddell, Clarke's Attorney-General, the constitutional position of Tunku 
Dia Oodin in Selangor was not free from doubt, and the political connection 
of the "pirates" with a faction hostile to him was assertable as a simple matter 
of fact. 284 Amusingly, if not tragically, the Sultan seemed to think that Tunku 
Dia Oodin 's role in the trial of the "pirates" was to administer Britishjustice. 
Braddell did not mention international law regarding "piracy" in reporting 
that a reply was immediately sent to the Sultan of Selangor "pointing out, in 
order that there might be no mistake in this report, that the justice was to be 
that of the Salangore, not of the British, Government." 285 

On 15 February 1874 the tribunal under Tunku Dia Oodin and in the 
presence of the two British Commissioners found all eight accused 286 guilty of 
"piracy and murder. " One of them was let off on account of his youth, and the 
other seven were executed in the Malay fashion by kris in such a way as not to 
spill blood. 287 

It will come as no surprise to those familiar with the almost automatic 
enforcement pattern of public international law that the policies of Governor 
Clarke and Thomas Braddell in trying to cover over a political advance by 
Great Britain with a display of legal words of art created grave difficulties of 
policy. Once it was accepted as a matter of policy that "piracy" included the 
political violence of Malay nobles battling for authority within the territories 
of the Malay Peninsula, British involvement in peninsular politics could not 
be avoided by trying to use "piracy" as a word of art in public international 
law that justified British exercise of authority without concommitant 
responsibility. The British advance continued and the result was the war 
between British-supported factions and even British forces on the one side, 
and the old Malay nobility on the other. But the word "piracy" seems to have 



258 The Law of Piracy 

lost all legal meaning in the correspondence that followed. 288 It was used in 
connection with British blockading actions and the destruction of Malay 
stockades, but not of trials or judicial executions or, indeed, any actions on 
the high seas or elsewhere where British courts might have been argued to 
have jurisdiction or public international law to have actually authorized an 
interference in the territorial affairs of a "state." 

The Limits of the British Imperial Law of Piracy 

Introduction. It has been narrated above, how the word "piracy" was 
adopted from English vernacular by Parliament and applied to authorize 
rewards to British naval personnel in disregard of the legal history of the 
concept to which the word had been applied in English courts. It has also 
been narrated in some detail how the word was sought to be used in the 
Persian Gulf, the Eastern Mediterranean, and in Southeast Asia to justify 
British actions inconsistent with the fundamental rules of the international 
legal order that make equal subjects of the law of all cohesive political 
societies that can maintain their independence, even if only as belligerents. 
It has been seen that in each case in which the word was used beyond the 
limits the legal order contains to imply any British authority inconsistent 
with those fundamental rules, the facts ultimately forced the British either 
to withdraw their pretentions or plunged them into the warlike 
complications that the use of the word had been expected to avoid. To 
conclude the tale of the political use of the word "piracy" by British 
authorities, one final incident might help indicate the refusal of the more 
sophisticated world to accept British political decisions as proper 
statements of law. 

It may be recalled that during the American Civil War of 1861-1865 the 
Federal authorities of the United States tried to attach the legal results of 
"piracy" as they were conceived to flow from international law to the acts 
of Confederate-licensed privateers and naval vessels, but that outside of the 
courts bound by the Constitution of the United States and legal labels 
attached by legislators under that Constitution, the attempt failed; and 
even within that legal order, the courts found ways to avoid applying the 
legal results of "piracy" to "rebels" in most cases. 289 With one limited 
Latin American exception, it was the position of the Law Officers of the 
Crown in the 1870s that the word could not properly be attached to foreign 
"rebels" unless the country so attaching the word were prepared to become 
involved in the political struggle among claimants to authority in a foreign 
state. 290 In the affairs of the Malay Peninsula of the 1870s, it has been seen 
that the use of the word "piracy" in disregard of these conclusions in fact 
brought about the predictable result of British involvement as belligerents, 
and ultimately the British conquest of the sultantates of the Malay 
Peninsula and the conversion of the word "piracy" in practice to a word of 



British 19th Century Practice 259 

political argumentation bringing about the very political entanglements it 
had been intended through legal argumentation to avoid. 

Nonetheless, in 1877 there was an incident in which the British Law 
Officers of the Crown attempted to use the word "piracy" as a legal word 
of art to justify British military action, and that incident has been so often 
cited and misunderstood that it must be examined in a little detail to set it in 
proper perspective. 291 

The Huascar Incident. On 6 May 1877 the crew of the Peruvian warship 
Huascar mutinied an sailed out of the Peruvian port of Callao, shortly 
afterwards receiving on board Don Nicolas Pierola as "President of Peru" 
in disregard of the existing Peruvian constitution. 292 The very next day, 7 
May 1877, the Peruvian Charge d'Affaires in Chile, Senor Zegarra, sent a 
note to the Chilean Minister of Foreign Affairs, Senor Alfonso, implicitly 
calling on Chile to seize the Huascar as a "pirate" ship. 293 The position of the 
constitutional Government of Peru was publicly announced a day later, on 8 
May 1877, when a decree was issued by the President, M.J. Prado, 
countersigned by P. Bustamente, the Peruvian Minister of War and Navy, 
declaring that the Republic of Peru "is not responsible for the acts of the 
rebels" and authorizing under the constitutional law of Peru "the capture 
of the Huascar," with recompense to those who help bring the vessel back to 
the authority of the Government. The word "pirate" is not used. 294 

On 10 and 11 May, the Huascar detained two British ships, demanding 
mail and dispatches; but the boarding party peacefully left in both cases 
when the demand was refused. A cargo of coal was divided, the Huascar 
taking a portion alleged to belong to Peruvian owners but shipped under 
British control, and two Britons, including a British engineer, were taken 
on board the Huascar to serve professionally, but whether voluntarily or not 
is not clear. It thus became legally very important whether the Huascar 
were classified as entitled to exercise belligerent rights (under which 
neutral vessels could be detained and contraband seized), 295 or not. If the 
Pierola people were "rebels" exercising "belligerent rights" against the 
British, who would then be "neutrals," the question of whether coal in 
these circumstances was "contraband of war" would have to be resolved by 
diplomatic discussion; British political action would be restricted to 
defending British neutral interests. If, on the other hand, the Pierola forces 
were regarded as mere Peruvian criminals, mutineers and thieves of 
Peruvian property, then British rights to defend British property from 
takings unauthorized by international law would seem to have been beyond 
the range of argument, and Pierola having no "standing" within the 
international legal order to discuss the matter, British self-help to recover 
the property, and perhaps political cooperation with the established 
Government of Peru to apprehend the Peruvian "criminals," would seem 
to have been justified. Finally, if the Pierola people were classified as 



260 The Law of Piracy 

"pirates," by "naturalist" logic the British could chase them down and hang 
them. By basically conservative "positivist" traditions the British Govern- 
ment itself, as the legal representative of the world order, basing standing on 
the injury to British nationals (if there were such injury), could apply British 
municipal criminal law within the jurisdiction of British Admiralty courts to 
the "pirates," if British municipal law made them such. Their apparent lack 
of animo furandi would make the application of British law doubtful. On the 
other hand, the "naturalist" tradition might have been interpreted to allow 
summary justice to be rendered by the Royal Navy to those classified as 
"outlaws," people beyond the protection of the law's classification system, 
regardless of "standing." 

The first British opinion was uttered by Rear-Admiral A.F.R. de Horsey, 
Commander-in-Chief of Her Britannic Majesty's Naval Forces in the Pacific 
Ocean, who sent a message to the "Commander of the Huascar" on 16 May 
1877. He prefaced himself with the language of neutrality, taking basically 
the middle view of Peruvian criminality, but hinting that he might attach the 
legal consequences of the "piracy" view, while avoiding use of the word: 

It becomes my duty to inform you that, notwithstanding my desire to preserve a strict 
neutrality in all internal dissensions in Peru, any boarding of, or other interference with 
British subjects or property by a revolutionary ship owing allegiance to no recognized 
or established government, cannot be tolerated, and that any acts of the kind performed 
by the Huascar will therefore necessitate my taking possession of that ship, and delivering 
her over to lawful authority. 296 

The next day, 17 May 1877, the Huascar entered a Chilean port and Zegarra, 
on instructions from Lima, again formally demanded that Chile deliver the 
ship to the Peruvian legation. In the Peruvian view, Chilean refusal to seize 
the Huascar would be "mixing in the civil strife of other countries. " Zegarra 's 
note did not mention "piracy" and denied the applicability of the law of war 
to the situation, thus denying any obligation in Chile to observe "neutrality": 
[T]here was no civil war in Peru; the case was purely one of mutiny," he 
wrote; thus, any hospitality shown to the Huascar would violate "the rights of 
nations," presumably Peru's rights to property in a Peruvian vessel. 297 

Senor Alfonso responded for Chile the next day, ignoring Zegarra 's 
current position and seeming to regard the legal situation as involving either 
"piracy" or "belligerency" with no intermediate classification possible. In 
that context, he absolutely denied Zegarra's arguments often days before, 7 
May 1877, and concluded that Chile should, and would, conform to the 
behavior that the international law of neutrality would require: 

The Charge d'Affaires had stated to him that the ship should be treated as a pirate, but 
such an assertion was opposed to the most elementary principles of international laws; 
on the contrary it appeared that the mutiny had a political object ... It was clear the 



British 19th Century Practice 261 

vessel was not a pirate, and the Government considered they had no reason to engage 
their naval forces in an encounter not required by the dignity or interests of Chile. . . . 
[N]o men or arms could be allowed to be embarked, nor any coal, and all 
communication with her would be cut off. The provisions and water necessary for the 
use of the crew alone would be granted. She was ordered not to remain longer than 24 
hours in Chilean waters. 298 

Zegarra replied in writing on 22 May 1877: 

Your Excellency maintains that the Huascar is not a pirate, and that there was no cause to 
fear she would interfere with Chilean commerce, and, therefore, that Chile had no right 
to assume a hostile attitude towards that vessel. The reasoning of your Excellency points 
to a simple insinuation contained in my letter of the 7th May, in which my first demand 
was put forward. ... It was very natural that, finding no other term for an armed vessel 
which floated on the high seas, subject to the passions of its crew, who recognized no 
responsibility, and who had committed a grave crime [mutiny against the law of Peru?], 
that I should have attributed to her a piratical character; but in my second letter I did not 
expressly and exclusively base my demand on this circumstance; yet, if a vessel under 
such conditions is not a pirate, I confess I do not know what to term her; she navigates 
without a commission from any Government, acknowledges no territorial authority, 
and, to establish more precisely her position, has detained on the high sea a commercial 
packet [the first British vessel], forcibly obliging the delivery of the correspondence on 
board. 299 If such a vessel is not a pirate, at the least she has placed herself completely 
outside international right; the flag she flies does not belong to her. 300 

There seems to have been no formal reply to this letter from the Chilean 
Foreign Minister and other actions to be discussed below made the 
correspondence moot. But the legal point must have disturbed important 
people both in Chile and in Peru. There was a debate in the Chilean 
Chamber of Deputies in which Alfonso 's position, that the Huascar was not 
properly classifiable as a "pirate" and that any Chilean action other than 
strict "neutrality" would inject Chile illegally into the internal affairs of 
Peru, seems to have carried the day, but with significant opposition. 301 The 
most significant change in position came from Peru, where the Foreign 
Minister, J.C. Julio Rospigliosi, ultimately concluded that Zegarra had 
been wrong; that there never was any "piracy" involved and that Chilean 
action to take sides in a Peruvian political struggle would have indeed been 
improper: 

In view of the correspondence of our Charge d'Affaires ad interim in the Republic of 
Chile, and considering that on the mutiny of the Huascar taking place the Government 
naturally foresaw she would proceed to that Republic, in whose waters our squadron 
could not seize her; . . . our Charge d'Affaires at Santiago was ordered to ask for the 
detention and delivery of the revolted vessel; that this order did not entail, and it was 
never the intention of the Government that it should entail, the intervention of Chile in 
our domestic questions. 

For this reason, and out of respect for the feeling of the nation, and notwithstanding the 
Government feel that the fault committed by our Charge d'Affaires is due to an excess 
of zeal in order the better to merit the confidence reposed in him, his proceedings are 
disapproved and his protest to the Chilean Government declared null and void. 302 



262 The Law of Piracy 

J.R. Graham, the British Charge d'Affaires in Lima, apparently misunder- 
stood the import in law of this Peruvian withdrawal from an untenable legal 
position, and reported back to Lord Derby that the disapproval ran merely to 
the "form in which" Zegarra had demanded the return of the Huascar, and 
was an attempt "to make a victim" of him. 303 It was not the subject of analysis 
by Graham or Drummond-Hay and seems not to have been discussed openly 
in any of the surviving correspondence. 

It is perhaps significant that Alfonso's position was that there was no other 
classification legally possible than "piracy," which he rejected because the 
motivation of the crew of the Huascar was essentially political or there was an 
objective "belligerency" requiring Chile to act as a "neutral" in the internal 
struggle in Peru. Julio Rospigliosi's position did not concede "belligerency." 
While apparently agreeing with Alfonso about the impropriety in law of 
attaching the word "piracy" to the politically motivated rebels, he seems to 
have regarded the matter legally as one of Peruvian law enforcement in 
which Chile was not bound to the international law regarding "neutrality," 
but to the law of peace forbidding interference in the internal concerns of 
other states. Under that law, the Chilean obligation would have been simply 
to return the "stolen" property, but not necessarily to extradite or try the 
violators of Peruvian law, since Peruvian law does not apply in Chile and any 
Chilean attempt to apply Chilean law to property rights in the Huascar would 
have been an intrusion into exclusively Peruvian legal interests. Zegarra, 
rejected by both the Chilean and Peruvian governments, seems to have agreed 
with Alfonso that there was no Peruvian "crime" involved, but only 
"piracy" or "belligerency," and that Chilean recognition of "belligerency" 
would give a status to Peruvian rebels that they did not deserve, thus affecting 
Peruvian politics and intervening in Peruvian domestic affairs. In his opinion, 
apparently, the only remaining classification was "piracy," which would 
require Chilean cooperation in suppressing the "rebellion." It is enough to 
say that both Governments involved rejected that view as wrong in law. 

It would thus appear that while the Governments of Chile and Peru 
disagreed as to the proper legal classification to be given to the Huascar, 
belligerent rebels requiring Chilean neutrality or Peruvian criminals of no 
legal concern at all to Chile but to be denied a base of operations there and 
Peruvian property in Chile to be returned to the Peruvian authorities, they 
agreed that the international law regarding "piracy," if there were any such 
law, was not applicable. They also agreed that whatever the rationale for 
applying it, the fundamental international legal principle must be maintained 
that no state is authorized to meddle in the affairs of another, even the 
criminal law enforcement of that other, without either an invitation or some 
other basis in the international legal order for the action. From the Chilean 
note, it appears that Chile thought such a basis might arise if the Huascar 
attacked Chilean shipping, but that the mere arrival of the Huascar in Chilean 



British 19th Century Practice 263 

waters was not enough. Peru argued that Chile was somehow legally bound 
to accept Peruvian official statements regarding Peruvian property rights in 
the vessel flying the Peruvian flag, but Chile rejected that argument and Peru 
did not press it further. Ultimately, Chilean abstention as if applying the 
international law of neutrality in a belligerency situation was apparently 
deemed acceptable to all concerned except the Peruvian subordinate official, 
Zegarra, who was reprimanded for pressing his view too loudly. 

Meantime, on 29 May 1877, the Shah and the Amethyst, British warships 
under Rear-Admiral de Horsey, had engaged the Huascar actually within 
Peruvian waters. Expressing considerable admiration for the seamanship 
exhibited by the Huascar, "steaming about 11 knots, and . . . always contriving 
to keep her turret guns pointing on us, except when in their loading position," 
de Horsey found that the Huascar claimed to be operating with "the President 
of Peru" (Sr. Pierola) on board therefore properly flying the Peruvian flag. 
She escaped at night and in the early morning of 30 May surrendered to the 
recognized Peruvian Government's squadron at Iquique. In de Horsey 's view, 
explaining his actions to the Secretary of the Admiralty immediately after the 
events recited, the Huascar in interfering with British vessels, property and 
persons had "committed acts which could not be tolerated." Moreover, 

[Hjaving no lawful commission as a ship of war, and owning no allegiance to any State, 
and the Peruvian Government having disclaimed all responsibility for her acts, no 
reclamation or satisfaction could be obtained except from that ship herself. 

Going further into polemics, he argued: 

That the status of the Huascar, previous to action with [my fleet], was, if not that of a 
pirate, at least that of a rebel ship having committed piratical acts. . . . [And] that the 
status of the Huascar, after refusing to yield to my lawful authority, and after engaging 
Her Majesty's ships, was that of a pirate. 

He concluded: 

That I trust the lesson that has been taught to offenders against international law will 
prove beneficial to British interests for many years to come. That I have carefully 
abstained from any interference with the interests of the Peruvian Government, or those 
of the persons in armed rebellion against that Government; my action in respect to the 
Huascar having been entirely for British interests. 304 

In his further defense about ten days later, de Horsey wrote to the 
Secretary to the British Admiralty that the fuss raised in Peru by his action 
against a Peruvian rebel in Peruvian waters could be "easily understood by 
those who are conversant with the state of politics." 

As there are at least three rebels to every loyal man, there is a vast feeling of 
disappointment at the practical result of my proceedings in respect to the Huascar having 
been the termination of the rebellion. . . . The political cry of the enemies of order is now 
that the Peruvian flag has been fired into by British ships, of course omitting to say that 
those colours were falsely hoisted by a piratical rebel vessel. 305 



264 The Law of Piracy 

In fact, it was not merely popular upset that ensued. On 10 June 1877 the 
Peruvian Foreign Minister, J.C. Julio Rospigliosi, addressed a circular 
communication to all Peruvian diplomatic representatives strongly con- 
demning the fact that de Horsey had "opened fire upon the Peruvian ship 
within the waters of the . . . port": 

The Huascar did not, on account of having refused to recognize the authority of 
Government, cease to belong to Peru. And, although the supreme Decree of 8th May 
last 306 was issued to bring about her apprehension, foreign ships-of-war were not 
thereby entitled to attack her, not only because international law prohibits mixing in the 
internal affairs of other states, but also because the reward offered by that Decree could 
not refer to the commanders of such ships without grossly offending their personal and 
national dignity. 

Moreover, Julio Rospigliosi argued: 

Let us, however, suppose that the Huascar provoked an attack of Her Britannic Majesty's 
ships, such attack could never be permitted to take place in the waters under the 
jurisdiction of the Republic without causing a flagrant violation of the immunity of her 
territory. 307 

The questions of law were referred by the British to the Law Officers of 
the Crown, who replied on 21 July 1877 adopting de Horsey 's view but 
without using the word "pirate": 

Admiral de Horsey was bound to act decisively for the protection of British subjects and 
British property, and . . . the proceedings resorted to by him were in law justifiable. 308 

This view was debated twice in Parliament on 7 August and 11 August 
1877, primarily by Sir William Harcourt, 309 who attacked the Attorney 
General, Sir John Holker, 310 both as to the facts and the law. Harcourt pointed 
out that the acts of the Huascar hardly seem "piratical" when all that she did 
would have been permissible if she were conceded the rights at international 
law of a "belligerent." The Huascar indeed stopped two "neutral" (British) 
vessels, but did not seize any property or mail, and left after being satisfied of 
their neutrality; the property supposedly seized was in fact claimed by a 
Peruvian owner as his part of a British shipment and was not clearly British 
property; at least one and probably both of the British individuals taken off 
one of the vessels seems to have gone voluntarily; etc. Belligerent rights, in his 
opinion, flowed from the facts of a political struggle with rival claimants to a 
governmental authority in Peru, which was the undoubted situation. 
Attorney General Holker argued essentially the same ground previously 
argued by Senor Zegarra and rejected by the Governments of both Peru and 
Chile, that absent recognition as a "belligerent," all acts under color of 
"belligerent rights" were criminal at international law and there was no label 
better fitting them than "piracy." 311 

One other aspect of the Parliamentary debate is worth mentioning. One of 
the supporters of the Government's position that the Huascar was "piratical," 
Sir George Bowyer, quoted in Latin the portion of Justinian's Code referring 



British 19th Century Practice 265 

to "enemies" being those with whom there is a public war, others being 
"praedones et pirata." 312 It does not appear to have been noticed in the debate 
that the original language does not refer to "pirata" at all, but "latrones;" 313 
that the question was not the relationship between the British and bandits, but 
between the British and unrecognized rebels, and whether such "rebels" 
could properly be treated as if they were mere "bandits; " that the Roman law 
presumed an imperial hegemony which seems inconsistent with the world of 
1877 and British limited legal powers in the Pacific coast of Latin America; 
that the quotation, thus, presumed an imperial law-making authority and 
classification system that was more than the Romans had asserted and was 
inconsistent with British views of the world legal order of the time. But it 
appears quite likely that Bowyer was expressing a view in Parliament that 
seemed to give to political action a legal cover that was convincing to many 
British policy-makers. 

The proper classification of the Huascar incident was referred back to the 
Law Officers of the Crown twice more. On 9 October 1877 they advised Lord 
Derby that a British claim against Peru for losses by the British interests that 
claimed to own the coal taken by the Huascar would not be justified. The 
ground for this opinion was essentially British reliance on the Peruvian 
Decree of 8 May 1877 disclaiming responsibility for the acts of the Huascar 
which were the basis for de Horsey 's attack. 314 Since the British defense of de 
Horsey 's action rested on the need to protect British interests, not on any 
reliance on the Peruvian note, this logic is hard to follow. Moreover, it would 
have seemed a clearer answer that Peru is not the insurer of foreign shipping 
or even foreign property physically within Peru, and, absent any failure of the 
Government of Peru to protect foreign property with "due diligence," or to 
open her courts in the normal way to do justice, there simply was no basis for 
an international claim. Many people are injured by criminals (under Peruvian 
or other law) who, when caught, cannot pay for what they stole; there was 
certainly no lack of diligence by Peru in trying to end the depredations (if that 
is what they were) of the Huascar. It seems likely that Holker was trying to 
avoid any implication that the actions of the Huascar might be justifiable under 
the law relating to "belligerency," and in his obsession with justifying British 
enforcement action without using the word "pirate ' ' and yet without denying 
the possibility of using the word, reached for an argument that seemed 
pertinent to de Horsey 's action rather than the simpler argument arriving at 
the same result without touching on the possible justifications for de Horsey 's 
violation of Peruvian territorial waters. 

In the second instance, Lord Derby sent to the Law Officers, including 
Holker, a draft reply to the formal Peruvian protest and on 7 March 1878 they 
approved his use of the word "pirate:" 

If a vessel under such conditions is not a pirate, I confess I do not know what to term her; 
she navigates without a commission from any Government, acknowledges no territorial 



266 The Law of Piracy 

authority, and to establish more precisely her position has detained on the high sea a 
commercial packet, forcibly compelling the delivery of the correspondence on board; if 
such a vessel is not a pirate, at least she has placed herself completely outside 
international right; the flag she flies does not belong to her. 315 

This language, clearly taken verbatim from Drummond-Hay's translation of 
Zegarra's note of 22 May 1877, 316 set forth as a British position the legal 
arguments already rejected by Zegarra's own government and by the 
government to which it had been addressed, Peru and Chile. There is no 
record of further correspondence between Great Britain and Peru on this 
matter in the available records. 317 

The British position as adopted by Lord Derby seems argumentative and 
unconvincing on several grounds. Most obvious is that it does not address 
directly one of the two major points made by Peru in Julio Rospigliosi's 
protest letter: The violation of Peruvian territorial waters. Even if the label 
"pirate" were the proper label to attach to the Huascar, there is no precedent 
in diplomatic correspondence for the victim of a territorial incursion 
agreeing that the incursion was justifiable in chasing "pirates." The British 
had themselves made that assertion and withdrawn from it in the affairs of 
Selangor analyzed at such length above. The situation was in fact addressed 
directly by the very same Law Officers of the Crown in Disraeli's 
Government when, in 1879-1880 the question of the legal right of British 
warships to chase Arab "pirates" into Turkish rivers in the Persian Gulf area 
was answered in the negative. 318 In that analysis it may be remembered, the 
"pirate-hunting" rationale was expressly rejected and another rationale was 
found in 1881 based on self-help in performing Turkey's asserted legal 
obligation to suppress predation on third country vessels by rebels as well as 
by "pirates;" the classification problems were avoided by finding the same 
legal results to flow regardless of whether the predators were called 
"pirates" or "rebels." In the Huascar case no equivalent failure of Peruvian 
local authorities could be alleged to justify British self-help, and the 
alternative British rationale of "self-defense," while suggested by Rear- 
Admiral de Horsey, also seems a bit strained when it is remembered that the 
Huascar was at the time attacked by the British not actually threatening any 
legal British interest. 

On a somewhat deeper level, the British position stated by Lord Derby 
seems to presume a British hegemony at sea, and perhaps even in the internal 
affairs of Peru, inconsistent with the equality and independence of states. This 
was the point most ardently pressed by Julio Rospigliosi and most persuasive 
to Alfonso in Chile. It is a point raised directly in the Parliamentary debate of 
11 August 1877 when Sir William Harcourt pressed the Attorney General Sir 
John Holker as to whether, if the crew of the Huascar were captured by the 
British force, the men would be prosecuted in England as "pirates." Holker 
had replied: "In strictness they were pirates, and might have been treated as 



British 19th Century Practice 267 

such, but it is one thing to assert that they had been guilty of acts of piracy, and 
another to advise that they shall be tried for their lives and hanged at 
Newgate." 319 This looks like the "naturalist" assertions of the Americans 
Story and Wheaton, preserving a legal theory by asserting to rest on legal 
discretion a legal position whose application in practice is consistently 
rejected. In fact, the legal situation appears to have been identical with that 
which gave the "naturalist" British judges so much trouble during the 
American Civil War of 1861-1865 and resulted in the refusal to extradite 
Tivnan and his friends as "pirates," while not trying them for the very 
"piracy" that was alleged to have been the true crime committed excusing 
them from the application of the extradition treaty. 320 It seems to treat the 
concept of "piracy" as a single legal notion with two different descriptions 
and sets of legal results, accepting the label as proper for all interfering with 
neutral shipping at sea who are not "belligerents," whatever their 
motivation, while giving the legal results of hanging as criminals only to those 
exhibiting the animum furandi and releasing the others. Viewed this way, 
attaching the label seems to be a step in the municipal criminal law process 
with regard to those with the animo furandi, and an excuse for political action 
against unrecognized "rebels" with regard to those without that animo. But 
since political action against foreigners rebelling against the constitutional 
authority of a foreign state would seem to be an intervention in the internal 
affairs of that state, at least when, as in the Huascar case, only one foreign 
state is involved in the rebellion, to use "piracy" as the basis for political 
action is in fact to take sides in the internal affairs of that state. So it was 
certainly viewed by the constitutional authorities of Peru in the Huascar 
incident, and they are the people most likely to have benefited from a British 
action in practice. Their objection was not merely a concession to rebellious 
and excitable Peruvian opinion, opposed to the British alignment against 
Peruvian rebels, but to the notion that such an alignment was "pirate- 
hunting" and not an intervention in internal Peruvian affairs. 

What distinguishes the case from the general American assertion of 
jurisdiction to try stateless "pirates" 321 was that the crew of the Huascar were 
in no way "stateless; " the men were Peruvian in their own contemplation and 
in that of the Government of Peru and, indeed, of Great Britain. American 
courts had, with some difficulty, come to the conclusion that the international 
legal order had a gap with regard to stateless persons on the high seas that 
could be filled by national assertions of jurisdiction in some cases even in the 
absence of direct injury to any legal interest threatened by the foreigners 
other than the general legal interest in secure trade by sea. The British 
Government was now asserting the existence of a gap in the international 
legal order to the extent foreign rebels might try to exercise belligerent rights 
against neutral shipping on the high seas, and asserting a legal power, by 
withholding "recognition" of "belligerency," to take sides in that foreign 



268 The Law of Piracy 

struggle without foreign resentments or British legal obligations. That 
position was not acceptable to the foreigners involved and might best, then, 
be classified a position of British Imperial law rather than a statement of a rule 
of international law. 

An implication of this mode of thinking in Great Britain is the free citation, 
as if applicable, of the Roman law phrases appropriate to the Roman 
hegemony as if statements of international law appropriate to British sea 
power, and even the paraphrasing of the Latin texts to better suit British 
Imperial needs. 322 

In the circumstances, it is not surprising that the writer who saw the 
greatest precedent value to the Huascar incident went out of his way to 
explain that the case was very special, implying sui generis, because "the 
insurgents had apparently no organized government even of a provisional 
kind" and their actions "exceeded even those rights of interference with 
neutral commerce which are accorded to a recognized belligerent." 323 Since 
the asserted "President of Peru" was on board of the Huascar at the time of the 
incident, and a large part of the Peruvian population in the estimate of de 
Horsey, at least, supported him, and since in fact the actions of the Huascar do 
not seem to have exceeded what would have been permissable to a belligerent 
(indeed, the argument was over whether it was proper even to consider 
applying the international law of belligerent rights to the activities of the 
vessel), the entire legal structure posited by later publicists on the basis of the 
British legal position in the case seems to fall. 

At this point, it is possible to argue that the Huascar incident does not 
represent even a view of British Imperial law, but instead a simple political 
argument put forth by a government that has made an embarrassing mistake, 
covering it over with a show of legal words convincing to nobody who was 
involved except, perhaps, to Rear-Admiral de Horsey and the assertive and 
repudiated agent of the defending Government of Peru in Chile, Charge 
d 'Affaires ad interim Zegarra. That the argument has survived seems testimony 
to the vigor of "natural law" theorists asserting a view of the international 
law relevant to "piracy" that ignores the basic structure of international 
society and raises security of sea-borne shipping to the level of the highest 
legally protected values of the international order. As applied to an actual 
incursion into foreign territory, that view failed shortly after the Huascar 
incident might have been interpreted to support it — and it was in fact never 
supported by the British in the Huascar correspondence and should have ended 
the matter immediately with a British apology to Peru for the violation of 
Peruvian territorial waters. As applied in theory to make universal criminals 
of "rebels" at the whim of policy of third states, it failed when it was 
confessed in Parliament that that legal result is not likely to have flowed; and 
in fact it could not have flowed because the legal result would have been the 
application of British municipal law, not international law, to the definition 



British 19th Century Practice 269 

of the crime of "piracy," and the lack of animo furandi would have ended 
the chances of a successful prosecution. 

In any event, the Huascar did not become a major precedent in 
practice. Instead, the concept of "piracy" was narrowed to its non- 
political legal limits, and the concept of "belligerency " in the absence of 
recognition expanded to include the politically motivated acts of rebels 
or other groups committing depredations without the animo furandi. 
When Colombia's Minister in Washington argued to Secretary of State 
Thomas F. Bayard in 1885 that Colombian rebels ought to be considered 
as "pirates" in the light of Lushington's opinion in the Magellan Pirates 
case, 324 the American reply was: 

[T]hat there can not be paper piracy with international effects and obligations any more 
than there can be a. paper blockade of effective character. 325 In the one case as in the other 
no force or effect can be communicated by a municipal decree which is not inherent in 
the case itself, and I felt constrained to announce to you that this Government could not 
deem itself bound in any manner by such a decree. 326 

This limit to the utility of the word "pirate" to describe unrecognized rebels 
Bayard traced in earlier correspondence back to the natural law underpin- 
nings of the legal order and the inevitability of wise policy being based on 
facts rather than on wishes: 

In the late civil war, the United States at an early period of the struggle surrendered the 
position that those manning the Confederate cruisers were pirates under international 
law. The United States of Colombia can not, sooner or later, do otherwise than accept 
the same view. 327 

Thus the United States had solved the problem the British had tried to solve 
by labeling as "pirates" all otherwise not classifiable as "belligerents," in 
much the same way as the British; by avoiding the entire labeling process as 
too colored by political wishes to reflect a true legal evaluation. Instead of 
affixing any label at all to "justify" the recapture of American property taken 
by unrecognized rebels, Bayard informed the Colombian Minister, Becerra: 

The commanders of the naval vessels of the United States on the Colombian coast have, 
however, been told that if conclusive proof be shown that any vessels belonging to 
citizens of the United States have been unlawfully taken from them, 328 the recovery of 
such property by the owners, or by others acting in their behalf, to the end of restoration 
to their legitimate control, is warrantable. Such a right is inherent, depending wholly 
upon the circumstances of the case, and can not be derived from or limited by any 
municipal decree of the Colombian Government. 329 

Since the American position rested on legal analysis in which the position of all 
states as legal equals was not only unquestioned, but was even the foundation 
stone of the logic holding American interpretations of the facts for purposes of 
attaching legal labels to be equally weighty with Colombian interpretations, and 
more weighty for the purposes of American policy, 330 the American position was 
squarely inconsistent with the implications of the British argument of 1877 
seeking to classify the Huascar a pirate vessel and to derive from that classification 



270 The Law of Piracy 

a general license to chase her down in any other state's territory. It was for 
each state to decide for itself whether any vessel could properly be classified 
"piratical," and no one state's autointerpretation was binding on any other. 
The British autointerpretation could not be binding on Peru. Thus, even if a 
later Peruvian agreement as to the propriety of the British classification could 
end the correspondence between those two powers, by the American 
rationale the British would have acted improperly by invading Peruvian 
waters before the Peruvian position was known. 

Moreover, the American position taken for itself was based on narrower 
legal reasoning about rules of law within the system as well as rules of the 
system itself. This was noted above. 331 Where the British rationale 
developed in internal correspondence by the Law Officers of the Crown in 
1879-1881 focused on the extension to the international realm of the 
principles of municipal or natural law that permit a person threatened with 
injury by the default of another to perform that other's duty for him, the 
American rationale was a more direct self-help rationale, more easily 
limited to direct recaption. The British rationale for using the law of 
"piracy" as a basis for asserting an obligation in third states to suppress 
interference with shipping generally was a way of justifying British 
policing of the seas generally. The American rationale was more narrow, 
justifying only the recapture of American vessels and goods, not the 
punishment as if a matter of criminal law of the alleged "pirates. " But then, 
the British attempt to use their legal position to justify "punishment" of 
"pirates" as if criminals when in fact merely interfering with shipping with 
or without any license or animo furandi, uniformly failed to avoid the very 
wars that the rationale was designed to make unnecessary. And it was 
ultimately the British who were forced to retreat into action rationalizable 
on the American rationale only, although never dropping their assertions of 
wider authority under international law, just as the naturalist jurists of the 
United States after Story never dropped their rationales although confined 
by Supreme Court precedents and the practical considerations of real life to 
much narrower actions. 

Conclusions 

It might be concluded then, that by the last years of the 19th century as 
seen by the United States and Great Britain, there were at least three quite 
different legal uses of the word "piracy," with a deep split among 
statesmen and judges as to how best to formulate the underlying 
conceptions, if any, in legal terms. The jurisprudential split lay between 
"naturalists" and "positivists" and has its roots in the 16th century, if not, 
indeed, in the very structure of human legal thought tracing back at least to 
Greek and Roman times. It is the split between those who see the law as 



British 19th Century Practice 271 

containing immutable principles and those who see the law as a matter of 
political negotiation. While one or other of these basic approaches appears 
to have been dominant at different times, there is no time and no country 
whose practice has been discussed above not having ample evidence of both 
strains of thought co-existing uneasily. With regard to both approaches, 
reality has a way of inevitably breaking through the theoretical structure to 
prevent the establishment as law of idiosyncratic views based either on 
non-generalizable moral perceptions like those of Story, or policy-oriented 
views demanding classifications that favor one party at the expense of 
objectivity like the American Federal Government's view of the 1861-1865 
Confederate raiders or the British view of the legal powers of Malay 
Rajahs. 

Assuming the two irreconcilable basic approaches, there remain the 
three quite different conceptions of "piracy": (1) "Piracy" as the raiding, 
taxing, territorial-jurisdiction concept of control over commerce that 
restricts the use of the seas as an avenue of commerce. This use of the term 
traces back at least to Roman times and reappears as a legal rationale for 
political action to establish a rule of freedom of commerce. This kind of 
"piracy" was successfully suppressed by military action in the seas beyond 
the claimed exclusive reach of a single sovereign. Suppressive military 
action led to war when extended to territorial waters (even when claimed 
in distant seas, like the Spanish and Portuguese, 16th and 17th century 
British, and consistent Barbary states claims) until British naval dominance 
made the entire law of the sea a matter of British Imperial law and 
contained rules of freedom of navigation as an aspect of that municipal law, 
more or less acquiesced in by maritime states for their own reasons and for a 
relatively short period in the 19th century. Even then, it appeared to work 
best when the assertions of law allowed for limitations on freedom of 
navigation on the high seas as an aspect of belligerency, provided that the 
rights of "belligerency" were conceded to unrecognized political 
authorities, as in the Eastern Mediterranean of the 1820s. 

(2) "Piracy" as a concept of municipal law involving merely the exercise 
of such jurisdiction by municipal courts as public international law allows 
to states within the legal order. This use of the term traces back to the 
adoption of the Latin word into English Admiralty law by the civilians of 
the 16th century as a word of art to attach to some property adjudications 
and "criminal" cases within the jurisdiction of Admiralty courts as distinct 
from the Common Law courts of England. The attempt to spread the 
concept to make an "international crime" of "piracy" seems to have been 
based on attempts by some statesmen to apply their municipal law to the 
acts of foreigners abroad. The leading substantive cases all seem to turn on 
circumstances in which the municipal law jurisdiction of England had a 
firm basis in the nationality of the actor, his co-conspirators or his victims; 



272 The Law of Piracy 

attempts to apply the law still further, to the acts of foreigners against other 
foreigners, while asserted from time to time, led for practical reasons in the 
real world to very few cases and the assertion of "natural law" theories that 
could not be meshed with reality or the equality of states and the territorial 
bases of sovereignty implicit in the general international legal order from 
earliest days. The furthest reach of national criminal jurisdiction ever to 
get through the courts under this conception of "piracy" appears to have 
been an American case involving stateless defendants, where practical 
problems of producing evidence made the exercise of jurisdiction by the 
state of the victim inappropriate and no other state had any basis for 
jurisdiction in the traditions of the international legal order. From this 
point of view, the evidence does not support any assertion of "universal 
jurisdiction" over "piracy" as a matter of international law, but it does 
support "passive personality," i.e., jurisdiction based on the nationality of 
the victim of the "piracy," and a universal jurisdiction over stateless 
defendants, for whom the classical international legal order provides no 
spokesman anyhow to object on a diplomatic level. 

(3) Between the conception of "piracy " as the label for states and persons 
conceived to be outside the international legal order, or at perpetual war 
with states within the legal order ("hostes humani generis") by virtue of their 
assertions of territorial or other jurisdiction interfering with trade at least 
at sea, and the conception of "piracy" as the label for non-state individuals 
and small groups violating the criminal laws of established states with 
jurisdiction over the offense based on the place of occurrence or the 
nationality of the actors or victims or some other basis for jurisdiction 
acceptable to other states as consistent with the international legal order, 
there seems to have been a third conception. That is "piracy" as a concept 
of public international law applicable to political actors whose degree of 
organization and ability to conform to the laws of war are insufficient in 
the opinions of states to justify the classification and legal results of 
"belligerency," but whose actions cannot properly be classified as 
"piracy" in the common law countries' municipal Admiralty law sense 
because of the lack otanimofurandi. Classifying the law applied by municipal 
Admiralty courts as a branch of public international law, derived from that 
branch of the "law of nations" that was considered to be the "natural law" 
common to all countries thus reflecting underlying conceptions of justice 
common to all mankind, it was possible to label the internal enemies of the 
constitution of any particular country in the Admiralty courts of that 
country, "pirates" instead of mere "rebels" or "traitors." It was possible 
further to argue that, the classifications of any municipal Admiralty court 
being mere reflections of universal law, such people were "pirates" in all 
countries and "hostes humani generis" in the sense of criminals under the 
public international law administered by the municipal Admiralty courts of 



British 19th Century Practice 273 

all nations. 332 This line of logic failed when tried by the United States 
Federal authorities during the American Civil War of 1861-1865, and failed 
when Colombia tried it in 1885. Instead, the word "pirate" retained a 
popular usage occasionally reflected in Imperial policy, as by Sir Andrew 
Clarke in the Malay Peninsula in 1874, with results that make it clear that 
that usage was political and not effective as a matter of law. Where the 
threshold for the classification "belligerent" was lowered to the point that 
any political violence could be accorded "belligerent rights" even in the 
absence of a degree of organization and territorial control normally 
considered legally necessary before the classification could be properly 
applied, as with regard to the Greek insurgency of the 1820s, stronger tools 
for persuasion were placed in the hands of policy makers of third countries 
maintaining "neutrality" in those struggles, and the system worked. 
Governments defending their national constitutions against rebels 
remained free to call the rebels "pirates" for internal political purposes, 
but usually found that a return to peace and stability was made easier by 
granting "belligerent" status to the rebels, even if only as a "concession" 
preserving the form of a municipal legal order under which the established 
government was the only one with legal powers and the rebels could also be 
classified as "criminals." 333 In these circumstances, it is not surprising that 
the word "piracy," while remaining in the vernacular and in the 
vocabulary of some scholars removed from policy responsibility, dropped 
out of international currency as a legal word of art in this third sense by the 
end of the nineteenth century. It was revived during the twentieth century 
in connection with violations of the laws and customs of war by 
acknowledged belligerents, in particular applied to submarine warfare 
during and after the World War of 1914-1918, but that revival must be 
discussed below. 

It is with this analysis of the third concept of "piracy," the attempt that 
failed to use the word as a legal pejorative applied to rebels whom 
statesmen find it in their parochial interest not to call "belligerents;" to 
draw on a word with municipal criminal law connotations that seem to 
reflect some universal, natural-law idea that in other areas has been 
dropped from public international law and relegated to conflict of laws 
theory; to bring in overtones of an ancient word with connotations of 
outlawry and imperial justifications reminiscent of the glories of Rome and 
the rationales for Roman suppression of those opposing universal trade 
under Roman hegemony and law; that we end this analysis of the classical 
international law of piracy. 

It adds a touch of charm to our appreciation of W.S. Gilbert, who, in 
seeking a legal basis for discharging the "Pirates of Penzance" from their 
legal responsibility, found in his comic opera of 1879 the perfect 
exculpation; one that would have applied to Malays as well: 



274 The Law of Piracy 

They are no members of the common throng; 
They are all noble-men who have gone wrong. 

A final word on the place of international law in the British policy 
decisions seems appropriate in this place. It has been seen how the word 
"piracy" was used from the early 18th century on to justify policy, and it 
can be argued that that use represented a conviction of justice and law that 
made policy wise, or at least is evidence that the statesmen believed their 
policy conformed to some accepted set of values. But it has also been seen 
that there was a persistent jurisprudential struggle. On the one side were 
"positivists," who conceived of the rules of law as those rules agreed on 
either expressly, as by treaty, or impliedly, as by behavior which is justified 
in diplomatic or other correspondence as compelled or at least permitted by 
principle; they defined "law" as the set of rules adopted and promulgated 
by a legislator (in the case of public international law, by the community of 
"states"). Under that model, once the rule is adopted, morality drops out of 
the picture, and the law is the law because it is the law regardless of its 
moral and political underpinnings. On the other side were "naturalists," 
who conceived of the rules of law as those rules discoverable by reason 
according to elaborate patterns analyzed by deep thinkers from the days of 
Plato, Aristotle and Cicero; to them the law exists whether or not adopted 
in practice or by treaty, and that "true law" is morally higher and "more 
binding" than the "positive law." There were times when "positivists" 
dominated the councils of states and times when "naturalists" dominated 
those councils. There were times when neither approach dominated, or 
when each dominated depending on which individuals and which forums 
were involved. 

As a practical matter, taking either a "positivist" or a "naturalist" 
approach, a competent lawyer can construct a model of reality using legal 
words that will seem to justify whatever a statesmen thinks is in the 
political interest of his state. But under "naturalist" theory, that 
justification is merely an argument with which others, believing themselves 
more attuned to the eternal rules of morality and "true law," can disagree. 
Under "positivist" theory, no state has the legal power to determine rules 
of international law, but only the power to interpret those rules for itself 
and try to convince others that that interpretation is correct. The decisions 
as to "true law," or the "determinations" of positive law, are made not by 
the self-serving pleadings of parties, but by detached scholars, by the 
reactions of other statesmen and publicists, and by history. Thus, for 
present purposes, the fact that some British judges had articulated a place 
for "piracy" in the international legal order that was felt to be persuasive 
to some British statesmen and some British Admirals is important, but not 
determinative of the law. The evidence of the disagreement of other statesmen, 
the unanticipated complexities within the British and international legal 



British 19th Century Practice 275 

orders created by "naturalist" assertions of Dr. Lushington and others in 
the cases before them, and the military and political problems created by 
Admirals and local governors acting under their perceptions of what is 
justifiable internationally in response to what they called a "piracy," all 
indicate that the naturalist perceptions of the last half of the 19th century 
were increasingly ill-attuned to both eternal values and positive 
expediency; that the American positivist position taken by Marshall and 
ultimately by Story in apparent disregard of the model in the hypothetical 
mind of the Congress in 1790, 1819 and 1820, was founded on a sounder 
comprehension of the actual operation of the international legal order than 
the naturalists could accept. 

Since each person must make up his own mind as to the most useful model 
of reality he constructs in his own mind to understand and possibly 
influence events, and the fundamental differences between naturalist 
models and positivist models seem to survive regardless of argument or 
experience, it is surely wisest for present purposes to end this small 
discursus here. But it might be helpful to bear in mind that the 
jurisprudential movement of the 19th century towards codification of the 
law, reaching a peak with regard to public international law in the first 
twenty years of the 20th century and surviving with some force even today, 
in the last years of that century, cannot ignore the jurisprudential 
disagreements. Codification is either a process of translating "natural law" 
into words, or of legislating. If the latter, morality, history and current 
policy are all legitimate parts of the law-making process, as they are in 
municipal legislation; if the former, a handful of incidents showing the 
application of morality in practice suffices to define a model which is then 
vigorously pressed with all inconsistencies explained away as minor 
exceptions or factual deviations from the true norm. The arguments among 
lawyers and policy-makers about these matters are endless. Here we will 
address those pertinent to the law of "piracy," and how the "victory" for 
the most articulate naturalist model builders resulted in a meaningless 
codification of no law. 

If the readers of this study see analogies to the attempt from 1973 to 1982 
to codify the law of the sea, I have no objection. 



Notes 



1. To European statesmen of the nineteenth century and, indeed, well into the twentieth century, 
European formulations of international law as applied among European states were conceived as 
universally applicable regardless of the exclusion of political organizations of Africa and Asia (and parts of 



276 The Law of Piracy 

Europe) from the processes by which that law was expressed; i.e., the disregard of their diplomatic 
statements and practices as persuasive within the legal order. See, e.g., the reference to there having been 
"no claim by any Power other than Denmark to the sovereignty over Greenland" prior to 1921, and the 
Viking settlements there having been in "unsettled countries," "a terra nullius" when the evidence shows 
those settlements to have been "established in a distant country and its inhabitants massacred by the 
aboriginal population." Legal Status of Eastern Greenland (1933), P. C.I.J. Ser. A/B, No. 53, p. 47. One 
might ask, Distant from what? Who were the "aboriginal population" sufficiently organized to 
"massacre" the Vikings who scourged parts of Northern Europe? In the dispute between Norway and 
Denmark, the possibility that the Eskimo population might have been "sovereign" in its ancestral territory 
was not considered. 

2. Cf. 2(4) Henry Burney, The Burney Papers (Bangkok, 1910-1914) passim, esp. p. 134 where Burney, in 
a report dated 2 December 1826 to the highest British officials in India following his successful conclusion 
of a major treaty with Thailand, summarized part of the history of British activities in Southeast Asia as 
accepting the right of Malay Sultans to cede territory while steadfastly refusing to interfere in their 
relations with Siam or in their internal politics, with some notable exceptions. In discussing the origins in 
1786 of British title to Penang Island, off the coast of the Malay Sultantate of Kedah, Burney conceded the 
Thai argument that Kedah was politically and legally subordinate to Thailand at the moment a treaty of 
cession was concluded, but argued that regardless of his other obligations to Thailand, the "Rajah of 
Queda" apparently had the authority to cede territory. Id., 171. This patently self-serving British position 
was, of course, unpersuasive to the Thai and the nobility of Kedah. An analysis of the entire transaction, 
and other related transactions, is in Rubin, International Personality of the Malay Peninsula (1974) passim., esp. p. 
220-221. 

3. H. Grotius, De lure Belli ac Pads (1625, 1646) (CECIL 1925), Book II, c. iii, para. 13(2), quoted in text 
at note 1-128 above. 

4. Cf. Longford, Wellington; The Years of the Sword 469 (Panther Books 1971): "Metternich's original idea 
. . . included the forlorn hope of Britannia climbing down a step or two from her maritime hegemony 
which she loftily called the Freedom of the Seas." 

5. See text at note III-207 above, quotation from The Hercules [1819] 165 Eng. Rep. 1511, 1518-1519. 

6. The statutes are cited at note III-138. The lack of legal consequence in international law is noted in 
the text above notes III-138 to III-140 and note III-140 itself. 

7. 2 Moore, Digest 1076. 

8. See note III-143 above. 

9. The most often cited of these decisions and the most directly in point is the decision by Sir William 
Scott, Lord Stowell, in The Helena, 4 C. Rob. 4 (1801). In that case, a purchaser of a British vessel captured 
by an Algerine commissioner as prize and sold in an Algerine market was given title valid against the 
original British owner. The taking might have been illegal, but Sir William Scott held that Algiers had the 
power of a state to apply its legal forms and transfer title; that complaints about denials of justice in 
applying those forms should be pursued at the discretion of the Crown through diplomatic channels, as 
would have been the case between European powers in identical circumstances. His reasoning is not 
policy-oriented as Gentili's had been two hundred years before in identical fact situations, but 
"naturalist. "The legal classifications seemed to Scott to flow from the facts directly. He thus adopted the 
conclusion of the Paris Court impliedly criticized by Grotius by 1632, applying what seems basically 
Grotian reasoning. See text at note 1-125 above, quoting Grotius, De lure Belli ac Pads (1625, 1646), Book III, 
ch. ix para. 19(2). 

10. 567. Wolff, Jus Gentium Methodo Scientifica Pertractatum (1747, 1764) (Joseph H. Drake, transl.) (CECIL 
1934)) sec. 124. The Drake translation used here is in Vol. II p. 70. In the original: "si qua Gens velit aliam ah 
usu navigandi &piscandi in mari vasto arcere, haecjustam belli causam hahet." Id., Vol I, p. 46. See also note 11-138 
above. As to the proper translation of justum, "just" or "legal," see note 1-46 above. 

1 1 . Vattel, Le Droit des Gens (1758) (Charles G. Fenwick, transl.) (CECIL 1916) Book I, sec. 282 in Vol. Ill 
p. 106. The original is in Vol. I, p. 245: " Le droit de naviger & de pecher en plein meretant done un droit commun a tous 
les hommes; la Nation qui entreprend d'exclure une autre de cet avantage, lui fait injure & lui donne un juste sujet de 
Guerre ..." See also note 11-137 above. On the popularity of citations to Vattel in this period, see the 
statistics prepared by Professor Edwin D. Dickinson on the basis of American cases 1789-1820 set out in 
Nussbaum,yl Condse History of the Law of Nations (rev'd ed. 1954) 162, showing court quotations: Grotius-2, 
Pufendorf-8, Bynkershoek-2, Vattel-22; court citations: Grotius-11, Pufendorf-4, Bynkershoek-16, 
Vattel-38; citations in pleadings: Grotius-16, Pufendorf-9, Bynkershoek-25, Vattel-92. Without 
attempting an equivalent statistical study of diplomatic correspondence, it is my personal impression based 
on the research for this work that the breakdown for the period 1777-1840 would be about the same; if 
anything more Vattel and less Pufendorf and Bynkershoek. 

12. The point can be seen most clearly by skipping over one and a half centuries of terminology, from 
Grotius to Vattel, to see the change as a quantum leap. In Vattel's original French the European inaction 
against the Barbary states is described as follows: 



British 19th Century Practice 277 

Les Nations Chr'etiennes ne seroient pas moins fondees a se r'eunir contre les R'epubliques Barbaresques, 
pour detruire ces repaires d'ecumeurs de mer, chez qui V amour du pillage, ou la crainte d'un juste chatiment 
sont les seules regies de la paix ou de la guerre. Mais les Corsaires ont la prudence de respecter ceux qui 
seroient le plus en etat de les chastier; & les Nations qui savent se conserve libres les routes d'un ricne 
commerce, ne sont point fachees que ces routes demeurent fermees pour les autres. 

Vattel, op. cit., Book II, Ch. VI, Sec. 78 (Vol. I, p. 313). In the Fenwick translation of 1916: 

Christian Nations would have an equal right to unite against the Barbary States to destroy 
the haunts of those pirates to whom the love of pillage and the fear of just chastisement are 
the only rules of peace and war. But the corsairs are prudent enough not to trouble those 
who are in a position to punish their attacks; and the Nations which are able to keep the 
routes of a rich commerce open to themselves are not sorry to see them closed to other 
Nations. Id, Vol. II, p. 137. 

The phrase translated as "pirates" by Fenwick is "'ecumeurs de mer." The word ' < ecumeurs ,, derives from the 
same Indogermanic route as the English words "skim" and "scum" and the German "Scnaum" ("foam"). It 
is picturesque as applied to the swift-boated licensees of the Barbary coast scudding afore the breeze for 
privateers' profit, but it is not a legal word of art and does not carry the weight of classical tradition or 
municipal law overtones of the word "pirate" in French or English. Vattel 's perception of the motivation 
of Barbary officials and commissioners of his time seems to have had no basis but European prejudice; 
indeed, the second of the two quoted sentences makes it clear that the Christian nations of the time in their 
practices were no less avaricious and disdainful of hypothesized natural rights of commerce than the 
Barbary states as perceived by Vattel. 

13. Note III-110 above. 

14. This rationale can be traced back to Aristotle, Nicomachean Ethics 1134b, 18 sq. Although Aristotle did 
speak to natural justice in this famous passage, comparing it to the flame which burns both in Greece and in 
Persia (sec. 2), he did not draw the conclusion, for which he is often cited, that "justice" is in any particular 
the same in all countries and that "law," to be "law," must be "just." Nor did he address standing at all. 
But the roots of the English Common Law distinction between mala in se and mala prohibita (evils of 
themselves, and evils because so declared) lie in the same conception and, where the English courts had 
standing, were applied to foreigners, even when they had the privileges of Ambassadors. See Palachie's 
Case, 1 Rolle 175 (1615), English version in R. v. March, 3 Bulstr. 27, 3 BILC 767. Both English and Law 
French texts are quoted at note 1-197 above. The English Common Law was changed by statute, 7 Anne c. 
12 (1708). 

15. Note III-110 above. 

16. U.S. v. Palmer et al., 16 U.S. (3 Wheaton) 610 (1818); U.S. v. Klintock, 18 U.S. (5 Wheation) 144 
(1820). These cases are discussed in the text at notes III— 75 sq. above. 

17. R. Zouche, Iuris et Indiciis Fecialis (1650) (CECIL 1911) 1. See text at note 11-134 above. 

18. The form had remained more or less unchanged since the days of Captain Kidd. See excerpts of 
representative commissions in the text at notes 11-93 and 11-94 above quoting from R. v. Kidd and others, 14 
How. St. Tr. 123(1701). The law of belligerent capture at sea and Prize courts' legal power to change title 
to enemy goods and to neutral goods denominated "contraband," even in the absence of a legal 
"blockade," were formulated in elegant brevity by the British Law Officers of the Crown in 1753. They 
treated prize law as a branch of the law of nations resting on the common practices of all "civilized" states. 
20 BFSP (1832-1833) 889 sq., Rules of Admiralty Jurisdiction in Time of War, 18 January 1753. The rules 
evolved over time as neutral interest in the profits of trade during a war between others clashed with 
belligerent interests in extending the profitable interdiction of trade with the enemy during wartime. See 
Scott, The Armed Neutralities of 1180 and 1800 (1918). As navies expanded and centralized control over 
military activities became more important to European states, the practice of licensing privateers ceased. 
Privateering was declared "abolished" as a matter of international law in 1856 with the United States the 
only major state refusing to go along with the consensus; and that refusal was apparently for other reasons 
than a desire to continue the practice of licensing privateers. Schindler & Toman, The Laws of Armed 
Conflicts (rev'd ed. 1981) 699-702. 

19. Cf. Jane Austen, Persuasion (1818) ch. 4: "Captain Wentworth had no fortune. He had been lucky in 
his profession; but spending freely, had realized nothing. But he was confident that he should be rich: full of 
life and ardour, he knew that he should soon have a ship, and soon be on a station that would lead to 
everything he wanted." (Modern Library ed., no date, p. 1225). 

20. The British navy at this period was manned by laying a manpower requirement on port towns and 
letting them enforce it by impressment. See for sample statutes 35 Geo. Ill c. 5, c. 19, c. 29 (1795). The 
practical impact of this method of recruitment during wartime is vividly described in Dugan, The Great 
Mutiny (1965, Signet ed. 1967) 63-65. Dugan 's book brilliantly and clearly analyzes the British naval mutiny 
of 1797 at the Nore — the incident that inspired Herman Melville's great novella, Billy Budd. Melville 



278 The Law of Piracy 

himself served as a seaman on the U.S. frigate United States in 1843 and in semi-fictionalized version 
described his experiences in the novel White Jacket (1849). 

21. 43 Geo. Ill c. 160 (1803), 44 Pickering 1020-1057. 

22. Id. 1037. 

23. 45 Geo. Ill c. 72 (1805), 45(2) Pickering 1041 at p. 1045. 

24. 6 Geo. IV c. 49 (1825), 65 Pickering 230. This statute is reproduced at Appendix I.C below. It is 
noteworthy that it did not apply to British privateers. Apparently privateering licenses to suppress 
"piracy" were not being issued any longer. 

25. Id. sec. Ill, pp. 231-232. 

26. See note 1-61 and text at notes 11-48 sq. above. 

27. 1 J. G. Lorimer, Gazeteer of the Persian Gulf (1915) 636. 

28. 58 CTS 387, "Agreement" dated 6 February 1806. 

29. 70 CTS 464. "Contract" of 8 January 1820. For the Arabic language translation I am indebted to Dr. 
Guive Mirfendereski whose researches into the history of the Persian Gulf were made available to me for 
purposes of this study. I am greatly in his debt. 

30. Deeper researches into the precise relationships among the Sheikhdoms, and between any of them 
and the English, at this period have been conducted by Dr. Mirfendereski, whose 1985 Ph.D. Dissertation, 
The Tamb Islands Controversy, 1887-1971, is on file at The Fletcher School of Law and Diplomacy, Tufts 
University. 

31. See note 1-35 above. 

32. 70 CTS 464-465. 

33. This British practice of concluding a "preliminary treaty" fixing relations in the interim between 
the decision of the British to open formal relations with a non-European society and the conclusion of a 
more formal document led in some cases to serious difficulties, as local British officials tried to pick and 
choose among the terms of the "preliminary treaty" and the final document prior to ratification those 
terms most favorable to their policies, and then claim the other side was bound to the preliminary treaty 
despite its ephemeral place in the negotiation and the fact that the British themselves in some cases 
regarded the "preliminary treaty" as being superseded by the new document even before ratification. For 
an example analyzed in some detail, see Rubin, International Personality of the Malay Peninsula (1974) 205-230, 
regarding the "preliminary treaty" of 1825 and the final treaty of 1826 between the British and Thailand. 

34. 70 CTS 472-476, 482. 

35. 70 CTS 482, Article 1. 

36. Id. 475. The word "attached" appearing twice in the text seems to refer to "attachment" as if part of 
the law of maritime prize. It looks like a legalistic pomposity perpetrated by a non-lawyer negotiating 
beyond his expertise. 

37. 70 CTS 466. Precisely what lay behind the unwillingness or inability of the Sheikh to produce his seal 
is not clear, nor is the basis for Captain Thompson's legal power to use his own seal in its place. One of the 
Sheikhs sealed both a "preliminary treaty" and the final "contract" on 8 January 1820; two others sealed 
the final "contract" a few weeks after sealing a "preliminary treaty"; three more sealed a "preliminary 
treaty" and the "contract" on the same day some time after 8 January 1820; three sealed the final 
"contract" without ever concluding a recorded "preliminary treaty." Thus, precisely what the 
relationship between the "preliminary treaties" and the "contract" was intended to be seems obscure as a 
matter of law. 

38. Whilom extensive British claims to sovereignty over the seas were quietly abandoned by the British 
during the eighteenth century. See Fulton, The Sovereignty of the Sea (191 1)523-527, 538. The adoption of the 
three-mile limit came about in Great Britain through judicial pronouncement in Prize court actions 
relating to the extent seaward of "neutral" waters within which a belligerent capture would be 
impermissable by the law of Prize. Id. 576 sq. The leading case is The Twee Gebroeders, 3 C. Rob. 336 (1801), 
opinion by Sir William Scott. 

39. See above at note III— 1 10. 

40. 70 CTS 471-476, 481-482. 

41. A convenient historical survey is Ilbert, The Government of India (1922). A full list of even only the 
essential primary sources would be too complex for purposes of this study. The transition from a private 
company to an arm of the British government with restricted powers and a complex constitutional 
relationship to the other arms of government in London involves an understanding of the legal and 
historical context for Townshend's Act of 1767, 7 Geo. Ill c. 57; North's Regulating Act of 1773, 13 Geo. Ill 
c. 63; Pitt's Act of 1784, 24 Geo. Ill c. 25; the Independent Powers of Governors Act of 1793, 33 Geo. Ill c. 
32; the East India Company Act of 1813, 53 Geo. Ill c. 155; and the East India Company Act of 1833, 3 & 4 
Will. IV c. 85. 

42. The most elaborate recent analysis of this is Alexandrowicz, An Introduction to the History of the Law of 
Nations in the East Indies (1967) passim, esp. p. 26-38. 

43. 11 & 12 Will. Ill c. 7 (1700), in Appendix LB below. 



British 19th Century Practice 279 

44. See text at notes 1-57 sq. above. 

45. See text at notes 1-2 to 1-3 above. Raffles was surely not the only main-line employee of the East 
India Company familiar with the Latin classics. 

46. F.O. 72/142, No. 1, Instruction from Castlereagh to the Duke of Wellington in Madrid and 
Ambassador Stuart in Paris, dated 8 January 1813, reproduced in 1 H.A. Smith, Great Britain and the Law of 
Nations (1932) 35. 

47. This inconsistency is noted by Smith. Id. 

48. See text at notes 1-107, 1-120, 1-194 sq., citing Gentili, Pleas of a Spanish Advocate (1613), andSoutherne 
v. Howe, 2 Rolle 5 (1617), for situations in which English jurists regarded the Barbary powers as fully 
independent for purposes of English law, including the law relating to "piracy." Whatever doubts might 
have revived about the legal power of the rulers of the Barbary states to change title to vessels and goods 
through the local equivalent of Prize court proceedings were removed for purposes of English maritime 
property law by the decision of Sir William Scott in The Helena (1801), cited note 9 above. Thus, by 1801, 
Algiers had been held to have a government with the normal powers of a government of a "state" in the 
international legal order to change title to vessels, at least as far as English law was concerned. 

49. See Fisher, op. cit. note 1-76 above for a useful review of the relations between the Barbary states and 
the Ottoman Emperor (the Sublime Porte) 1415-1830, concentrating on the 17th and 18th centuries. See 
also Moessner, Die Voelkerrechtspersoenlichkeit unddie Voelkerrechtspraxis der Barbareskenstaaten (1968) passim for 
a comprehensive review of the European classifications of the Barbary states 1518-1830. Moessner seems to 
give rather more weight to the views of some European publicists than seems warranted by the 
jurisprudential analysis given in ch. II, esp. text at notes 11-139 sq. above. An incisive analysis in the light of 
further thought and research is Moessner, The Barbary Powers in International Law, in Alexandrowicz, 
ed., Grotian Society Papers 1972 197 esp. pp. 207-215 (1972). 

50. F.O. 8/3, quoted in Smith, op. cit. 36. 

51. Id. 

52. The text of the pertinent Protocol is at 2 BFSP (1814-1815) 744. The correspondence concerning 
Exmouth's expedition is at 3 id. (1815-1816) 509-552. 

53. 3 Id. 517. 

54. See The Helena, cited at note 9 above. 

55. The Dey 's surrender is reproduced in 81 CTS 53. Shortly afterwards, France concluded treaties with 
Tunis (8 August 1830, 81 CTS 99) and Tripoli (11 August 1830, 81 CTS 147), bringing those "states," 
without the consent of the Sublime Porte, into French legal control. French authority in Morocco was 
established soon after. See Case of the Tunis-Morocco Nationality Decrees, P.C.I.J., Ser. B, No. 4 (1923), 
for an Advisory Opinion by the League of Nations' judicial arm as to whether nationality laws of those 
Barbary states, by then under the regime of French Imperial law, raised questions of international law 
when they affected British nationals resident there. To trace the evolution of the Barbary states, via French 
(and, in the case of Libya, Italian) "protection" to independence again after the Second World War is 
beyond the scope of this study. 

56. 8 BFSP (1820-1821) 1282-1283. 

57. Id. 1283-1285. 

58. 1 Smith, op. cit. 282-283. 

59. 8 BFSP 1283. 

60. See 1 Smith, op. cit., 282 note 1. Oakes & Mowat, The Great European Treaties of the Nineteenth Century 
(1918, 1970) 105 note 1, refers to a British Proclamation of Neutrality on 30 September 1825 under the 
Foreign Enlistment Act of 1819, 59 Geo. Ill c. 69. That Proclamation appears in 12 BFSP (1824-1825) 525 
wrongly citing the Act 59 Geo. Ill c. 63; the correct Act is reprinted as c. 69 in 6 BFSP (1818-1819) 130. 
There was a vaguely worded Proclamation of Neutrality in the "hostilities . . . between different states and 
countries in Europe and America" on 6June 1823. 1 Smith, op. cit. 288; 10 BFSP (1822-1823) 648. The British 
interpretation of the obligations of neutrality as they related to the belligerent law of Prize at this time, 
expressly referred to as part of the "Law of Nations" reflecting an underlying general international law 
under the terminology of the period, is set out in the Opinion of the Law Officers of the Crown dated 18 
January 1753 (cited at note 18 above). As to the technical meaning of the phrase "Law of Nations" at that 
time, see ch. II. above. 

61 . The precise reasons in law for this request are not clear; nor, as shall be seen, was the answer. It is not 
self-evident that governmental permission was necessary at that time for a private firm to engage in 
foreign trade even in arms, when there was no state of war, no formal proclamation of neutrality and no 
embargo order in effect. 

62. Robert Banks Jenkinson, 2nd Earl of Liverpool, was Prime Minister (or, more properly at the time, 
Chief of Cabinet) in the Tory Government 1812-1827. 

63. F.O. 78/106 dated 27 September 1821, reproduced in 1 Smith, op. cit. 283-284. It is unlikely that 
Liverpool could constitutionally have forbidden it without formal governmental action even if he had 
wished to. 



280 The Law of Piracy 

64. F.O. 83/2385 quoted in 1 Smith, op. cit. 284-285. The first sentence only of this opinion appears in 1 
McNair, International Law Opinions (1956) 267. 

65. 9 BFSP (1821-1822) 620. 

66. Id. 798; 1 Smith, op. cit. 285. 

67. 1 Smith, op. cit. 286-288. Smith construes a Navy instruction to Vice-Admiral Sir Graham Moore, 
apparently concurred in by the Foreign Office, as "in substance ... a recognition of belligerency, though 
no formal announcement to that effect was made." Id. 288 citing Ad. 2/1693, No. 10. 

68. Id. 291. 

69. Id. 293. 

70. Id. 292-293. 

71 . Id. It would be amusing, if it were not so confusing, that policy-makers seeking to use the law, and 
lawyers seeking to influence policy outside the proper sphere of a lawyer's expertise, use the term "dejure" 
to refer to a labeling system based on policy in disregard of law and fact, while lawyers operating within 
the proper sphere of their expertise and policy-makers grappling with reality as they eventually must, 
draw their conclusions from labels affixed "de facto. " It is mysterious that a reference to "law" is used to 
justify a departure from reality and refer to a system of labels affixed for non-legal reasons of policy, while 
a reference to "fact" is universally used when responsible lawyers and judges sit down to decide real cases 
by applying the law, and counsel clients concerned with reality. 

72. Cited note 60 above. 

73. 1 Smith, op. cit. 293. 

74. Id. 290. 

75. See Nicolson, The Congress of Vienna (1946, Compass Books ed. 1961) 268-269; 6 Moore, Digest 
374-379, 407-408. A full exposition of the views of Prince Metternich and the evolution of the Holy 
Alliance is beyond the scope of this study. 

76. F.O. 7/181, No. 34, reprinted in 1 Smith, op. cit. 294-297. The quoted portion is on page 296. 
Wellesley's biography is in 20 DNB 1116-1117. 

77. NRS, Piracy in the Levant, 1827-8; Selected from the Papers of Admiral Sir Edward Codrington, K.C.B. 
(hereafter cited as Codrington Papers) (1934) (Volume 72 of the Navy Records Society Series) xviii-xix. 

78. Pertinent text is set out at note 24 above and in Appendix I.C. 

79. Parliamentary Papers 1825 XXVI, p. 66, cited in 70 CTS 463. 

80. As noted above, the statute of 1825 was made retroactive to 1 January 1820. The publication of the 
"Contract" of 1825 by Parliament seems to have been part of the justification for this retroactivity. 

81. Codrington Papers 60-61. The identity of the Greek "Naval Islands" is not clear. 

82. Id. 48, letter dated 9 January 1827. "Trabaccolo" is the local word for a small ship; the word is 
Italian. 

83. Id. 48-52. The chase after Suitto continued at sea, unsuccessfully. Id. 114-117. Why the Greek 
authorities should have been concerned about the British capture of a Turkish vessel is not clear. Moreover, 
in the official list of Greek "pirates" prepared by the British in 1828, the names of Nicolo Suitto and Nicolo 
Coccocci do not appear. Id. 281-290. 

84. Id. 67-70. The list of 152 plundered vessels compiled by the British in 1828 oddly enough does not 
include any French ship, but does include Russian, English, Austrian, Ionian, Tuscan, Maltese and Sardinian 
vessels. It also regards one shore raid as "piratical." Id. 281-290. 

85. Id. 104, letter from Sir Frederick Hankey, Chief Secretary to the [British] Government of Malta, to 
Admiral Codrington dated 8 May 1827. The letter begins on p. 103. Captain Mussu's name is also not on the 
list of "pirates" in id. 281-290. Malta had been governed by a Crusading Order until taken over by France in 
1798. It was captured by the British in 1800 and governed by them until independence in 1964. 

86. Id. 104. 

87. Id. 219. 

88. Id. 225, letter dated 19 October 1827. 

89. Id. 238-239. 

90. Id. 246-248. 

91. Id. 257. The Report begins on p. 256. 

92. Id. 

93. See text at notes 111-40 and 111-41 above, quoting from 1 AG 48-49 (1841 ed.), opinion dated 14 

March 1798. 

94. In U.S. v. Pedro Gilbert & Others, 2 Sumner 19 (1834), quoted in the text above at note 111-70. 

95. Cp. text at notes 1-80 to 1-85, 1-130 above. 

96. 5 S. Purchas, Hakluytus Postumus or Purchas His Pilgrims (1625) (Glasgow, 1905-1907) 221. 

97. 2 Dampier, A New Voyage Round the World (1717), in Masefield, ed., Dampier's Voyages 1700-1726 
(1906) 88. 

98. See Rubin, International Personality 102. 

99. Anderson, Acheen and the Ports on the North and East Coast of Sumatra . . . (1840) 34-36, 37 note. 
100. Id. p. 47 note. 



British 19th Century Practice 281 

101 . Id. 45; Low, An Account of the Origin and Progress of the British Colonies in the Straits of Malacca, 
4 Journal of the Indian Archipelago (Logan's Journal) (hereafter JI A) 11 at p. 17 (1850); Cowan, Early Penang 
and the Rise of Singapore, 1805-1832, 23(2)Joumal of the Royal Asian Society, Malayan Branch (JRASMB) 1 at p. 
49-51 (1945). 

102. Anderson, op. cit. 51-52, 56-58; Low, op. cit. 17-18; 1 Kyshe, Cases . . . Straits Settlements, 1808-1884 
(1885) xliv, xlvii. 

103. Anderson, op. cit. 79-80. 

104. Id. 72-73. 

105. Id. 73. 

106. 24 Geo. Ill c. 25 [usually called Pitt's India Act], art. 35. The history of British imperial expansion 
and its legal mechanisms are beyond the scope of this study. A handy collection of selected documents is 
Muir, The Making of British India (1917). A more or less standard secondary analysis is Ilbert, The Government 
of India (1922). See note 41 above. 

107. See text at notes 1-2 and 1-3 above. 

108. Letter dated 22 January 1819 from the Secretary of the Government of Prince of Wales' Island to the 
Chief Secretary of the Government of Fort William (in India), reproduced in Cowan, Early Penang and the 
Rise of Singapore, 1805-1832, cited note 101 above, 88-89. Permission was in fact given to annex Pangkor, 
but the British were unable to find a Malay Sultan who had both a politically and legally supportable claim 
to sovereignty and a willingness to cede that sovereignty. Cowan, Governor Bannerman and the Penang 
Tin Scheme, 23(l)JRASMB 52 (1945) at 63, 72-73, 76-78. The situation is summarized in Rubin, International 
Personality 187-188. 

109. Miller, Extracts from the Letters of Col. Nahuijs, 19(2) JRASMB 169 (1941), at 192 letter dated 10 
June 1824. It has been impossible to find the original Dutch language version of this letter. 

110. See Marks, The First Contest for Singapore: 1819-1824 (1959) for a meticulous analysis of the legal 
arguments raised during Anglo-Dutch negotiations in Europe concerning sovereignty over Singapore. 

111. Id. 252; 11 BFSP (1823-1824) 194; 74 CTS 87. 

112. Id. article 5. The evolution of the Dutch word "Zeeroof" and its technical legal usages, if any, seem 
beyond the scope of reasonable research for purposes of this study. Bynkershoek wrote his major legal 
works in Latin, not Dutch. To check the Dutch translations of the major European writers and the 
historical development of Dutch statute law seems excessive. It is not known what word Nahuijs used that 
Miller translated "pirates" in the extract at note 109 above. 

113. The word is chosen deliberately. The similarities of the British view of their legal powers in 
Southeast Asia and the Roman view of their legal powers in the Eastern Mediterranean are strikingly 
apparent. (See note 1-35 above). The British began to call their position "Paramountcy " and derive special 
legal authority from that word at this time. See British Parliamentary Papers, Cmd. 3302, Report of the Indian 
States Committee, 1928-1929 passim, esp. paras. 20-21 at p. 14-15, for a British analysis of "paramountcy" 
from 1804 onwards. The position taken is argumentative in favor of British legal rights in India, but 
scholarly in its use of source materials. 

114. 76 CTS 445 at p. 446. Under the Act of 1784 and other legal arrangements, the British colonies in 
Southeast Asia, including Penang, were governed in the name of the East India Company. 

115. Id. 449-450, fourth article. 

116. Low, responding on 17 August 1827, to allegations of wrong-doing in the raid on 17 August 1827, 
wrote that "Oodin's" evil reputation was substantiated by police records in Penang and that a freed slave 
had testified that he, Udin, had been behind kidnappings in Penang Island itself. 2(6) Burney Papers 225 at p. 
233-235. 

117. Low, Account, 4 JIA at 116-117 (1850). 

118. Lord Amherst to Fullerton, The Governor of Penang, in Council, 23 July 1827, 2(6) Burney Papers 205 
at p. 213-214. 

119. Id., Lov/'s Report cited note 116 above at 232. 

120. Id. 245 at 250. 

121. Id. at 249. 

122. Op. cit. note 118, p. 207 (cutting the military budget), 212 (disapproving the acquisition of the 
Islands); these portions of the Supreme Government's letter of 23 July 1827 were not rescinded when 
retroactive approval was given to Low's raids. 

123. Id. 277-279. 

124. Admiralty jurisdiction was not given to the British courts in the area until 25 February 1837. 1 
Kyshe lxxix. Until that time such cases as had arisen there that required referral to a British Admiralty 
court were sent to Calcutta for adjudication. See R. v. Noquedah Allong & ors., 2 Kyshe (Cr.) 3 (1811). In 
one case, a robbery on a navigable river in Province Wellesley was held to be within the court's Common 
Law criminal jurisdiction despite it being clearly within the traditional Admiralty jurisdiction. On referral 
to Madras and eventually Calcutta, the Penang convictions were upheld. R. v. Lebby Lundoo & Anor., 2 
Kyshe (Cr.) 6 (1813) esp. p. 12. 

125. See text at notes II-4 sq. above. 



282 The Law of Piracy 

126. The Thai position legally was quite closely analogous to the British position regarding 
Paramountcy. The British had agreed to the Thai pretentions in a treaty negotiated in Bangkok in 1826, 14 
C.U. Aitchison, Treaties, Engagements and Sanaa's . . . (Calcutta 1929) 115 and undertook to prevent British 
territory being used for Malay political activity against the Thai regime in Kedah. The tale is too 
complicated for concise summary. See Rubin, Piracy, Paramountcy and Protectorates (1974) 1-34. 

127. 3(1) Burney Papers 309 , Ibbetson to the Chief Secretary to the Supreme Government, despatch dated 
25 April 1832. 

128. Id. 317, letter from Bonham to Ibbetson dated 9 August 1832; 319, Ibbetson 's reply dated 28 August 
1832. 

129. 3(2) Id. AAA, Report by Governor Bonham to Mr. Prinsep, Chief Secretary to the Supreme 
Government in India dated 30 July 1838, at p. 446. 

130. Id. 473, letter from the Chao Phya Pra Klang in Bangkok to Bonham dated 24 June 1838, at p. 475. 

131. The Thai word translated "pirates" is not known, nor the legal implications of that word. The 
intention to use the British conception of "pirates" as the "common enemies of mankind" and thus to bring 
the British into the dynastic struggle as a party against the rebels seems clear. 

132. Cf. Osborn, . . . The Blockade ofQuedah (2d ed. 1860) p. 22: 

[AJlthough many of the leaders were known and avowed pirates, still the strong European 
party at Penang maintained that they were lawful belligerents battling to regain their own. 
The East India Company and Lord Aukland, then Governor-General of India, took 
however an adverse view of the Malay claim to Quedah, and declared them pirates, though 
upon what grounds no one seemed very well able to show. 

133. The full tale is much more complex than can be fully retailed here. I have tried to set out a more 
complete summary in Rubin, Piracy, Paramountcy and Protectorates (1974) 22-30, and the interested reader is 
encouraged to read for himself the primary documents cited there. 

134. Regina v. Tunkoo Mohamed Saad and ors. (1840) 2 Kyshe (Cr.) 18; photographically reproduced in 
1 Parry & Hopkins, eds., Commonwealth International Law Cases 31. 

135. This is an obvious error in the Report; either Mohamed Saad was apprehended after that date, 
which is inconsistent with Governor Bonham 's Report to T.H. Maddock, Secretary to the Government of 
India at Fort William, dated 26 January 1841, 4(2) Burney Papers 7 (1913), or the date is wrong in Kyshe 's 
Reports, which seems more likely. The point was not raised during the proceedings in Penang. It appears to 
have been assumed there, probably because common knowledge, that Mohamed Saad and his companions 
had acted as if claimants to the crown of Kedah in capturing a Malay boat after the Thai had reconquered 
the Sultanate. 

136. Lord Aukland's Report to the Court of Directors of the East India Company, 18 March 1841, 4(2) 
Burney Papers 1, refers to the "piracy" having been committed "on a vessel belonging to a subject of our 
Government" (p. 1). 

137. R. v. Kidd, cited at note 18 above, analyzed in text at notes 11-91 sq. above; Palachie's Case, cited at 
note 14 above, analyzed in the text at ch. I.d. above. 

138. Citing 2 Wynne, The Life of Sir Leoline Jenkins (1724) 791, the part of the Jenkins's writing quoted in 
the text at note II-2 above. 

139. Some of these citations seem incorrect and it may be speculated that the library resources available 
to Sir William Norris, the "Recorder" (Judge) in Penang, and learned counsel were not sufficient to allow 
everything to be checked. 

140. 2 Kyshe (Cr.) 65-67. 

141. Id. 67. 

142. Id. 68. 

143. See text at notes II-4 sq. above. Norris ignored the actual convictions at English law of the eight 
Irish commissioners for "piracy." Instead he noted that "the most eminent civilians were of opinion that 
the grantor [of the commissions, King James II (ignoring that they were in fact granted by Louis XIV)] still 
having the right of war in him, such captures could not by the Law of Nations be deemed piratical, though 
made such afterwards by the Statute 11th and 12th, Wm. III., c. 7, in the case of one British subject 
attacking another under colour of such commissions." See pertinent text at note 11-32 above; also in 
Appendix LB. 

144. 6 Anne c. 11 (1707). 

145. 2 Kyshe (Cr.) 71-73. 

146. Mohamed Saad actually escaped from British custody to Perak shortly after the trial, but gave 
himself up a short time later. 4(2) Burney Papers 63-64 (Bonham to Maddock, letter dated 10 May 1842). He 
was deported on a British ship to Calcutta "as a state prisoner." (Id.) A habeas corpus writ ordering his 
release was issued on the motion of a local barrister, but the executive officials of the Company had already 
removed him bodily to a town outside the jurisdiction of the British court in Calcutta. Id. 1 (Lord Aukland's 



British 19th Century Practice 283 

Report cited note 136 above) at p. 2. He was released on the order of the Company's officials dated 29 July 
1843. Id. 86 (J. Thompson, Secretary to the Government of India, to the Magistrate of Moorshedabad). This 
looks like a shoddy business. Lord Aukland accepted entirely the opinions of Governor Bonham as to 
Mohamed Saad's character and activities, which Lord Aukland called "a career of predatory violence of 
the most atrocious character," (id. 1) despite the analysis and evidence of Norris and other substantial 
members of the British community in Penang. 

147. Bonham to Norris, 23 December 1840, 4(2) Bumey Papers 15 at 16-17. 

148. Norris to Bonham, 25 January 1841, 4(2) Bumey Papers 18 at 20-21. 

149. Id. 23. 

150. The Court of Directors to the Government of India, 31 December 1841, 4(2) Bumey Papers 3 at 3-4. 

151. The British had organized their administration in the area to make the "Straits Settlements" of 
Penang, Malacca and Singapore subordinate to the East India Company's Government in India and affairs 
in the Malay area were regarded in British official correspondence as part of the affairs of India. The 
statutes and regulations involved are cited and summarized in Rubin, International Personality 278-280. 

152. Op. cit. note 150 above at p. 4. The quotation from Norris's charge is taken from 2 Kyshe (Cr.) 73. 

153. Especially in connection with American pretentions in the 1810s and 1820s. See ch. Ill discussed 
above at note III-264 sq. 

154. Aitchison, op. cit. note 126 above 116, article 5. 

155. Of course, the law applied in Admiralty and Prize courts was, by the middle of the eighteenth 
century at the latest in England, regarded as part of the "law of nations," thus of "international law" in its 
jus gentium natural law — law common to all people — phase. See Report of British Law Officers on the Rules 
of Admiralty Jurisdiction, & c, in Time of War, 18 January 1753, cited at note 18 above at 901. The 
municipal act creating the tribunal could be regarded as directing it to apply a conflict of laws rule 
referring to true international law as the law of substance to be applied in many cases. But, as has been seen, 
to gain jurisdiction over accused "pirates," the municipal law limits to a municipal court's jurisdiction 
would apply, or the international law limits to the jurisdiction of any court of a particular sovereign, would 
apply. Thus, the only "pirates" within the Admiralty or other national court's jurisdiction would be 
persons linked by nationality to the state whose tribunal was trying them, or not linked by nationality to 
any other state, or, in the case of foreigners, linked by the nationality of the victim or the flag of a vessel 
attacked on the high seas ("high seas" itself being a term defined by the municipal tribunal normally as an 
autointerpretation of international law). Moreover, the substantive law being applied, although called 
"law of nations" or part of "international law" by the state of the tribunal, was in fact only that state's 
interpretation of that law, there being no possibility of diplomatic correspondence to modify that state's 
view. In the cases in which the defendants were conceived to have some claim to international status or a 
license from a belligerent or foreign government, the charge of "piracy " never appears to have resulted in 
a criminal conviction. Cf., in addition to the Mohamed Saad case, In re Tivnan, discussed above at note 
III-264 sq. The only known cases that might be regarded as exceptions are the much disputed case of the 
French adherents of Dom Antonio, discussed at note 1-100 above, and the seminal discussions in England 
concerning the Irishmen holding commissions from Louis XIV to fight on behalf of the ousted James II in 
the 1690s analyzed in the text at notes II— 4 sq above. 

156. G. Fox, British Admirals and Chinese Pirates, 1832-1869 (1949). 

157. N. Tarling, British Policy Towards the Dutch and the Native Princes in the Malay Archipelago, 1824-1871 (Ph.D. 
Dissertation 2914, University of Cambridge Library) (1956), published in an edited version as British Policy in the 
Malay Peninsula and Archipelago, 1824-71 as a complete number of a learned journal, 33(3)JRASMB 1 (1957). 
Another work by Tarling, Piracy and Politics in the Malay World (1963) completes the story from an historian's 
point of view and is sensitive to the legal issues although not dealing with them as a lawyer would. 

158. My own beginning along that line, Rubin, Piracy, Paramountcy and Protectorates (1974), focuses on the 
entire law of imperialism of which the British Imperial law relating to "piracy" as an excuse for military 
action was but a part, handled rather superficially in the light of the research involved in this study. 

159. The literature on this incident and the career of James Brooke is voluminous. The interested reader 
might start with S. Runciman, The White Rajahs (1960); N. Tarling, Britain, the Brookes and Borneo (1971 ); and 
Keppel's own account in H. Keppel, The Expedition to Borneo of H. M.S. Dido for the Suppression of Piracy ... (2 
vols.) (1846). 

160. 6 Geo. IV c. 49, analyzed above at notes 24-26. 

161. The Serhassan (Pirates) [1845] 2 W. Rob. 354, reproduced with some editorial errors (e.g. the Malay 
word "prahu" (boat) being misspelled "prahn" throughout), in 3 BILC 778. Lushington's conceptual 
difficulties in meshing his fundamentally policy-oriented positivist approach with the realities that those 
policies sought to change were noted in connection with the Ionian Islands and Greek revolution in 1823 at 
notes 68-73 above. 

162. Id. 2 W.Rob. 358, 3 BILC 780. There seems to be some inconsistency or a reporter's error regarding 
the number captured or killed; the claim was for 55; limiting the award to that appropriate for 45 is not 
explained. 



284 The Law of Piracy 

163. Id. 357 (779). 

164. The Act is reproduced in Appendix I.C below. 

165. Fox, op. cit. at note 156 above, p. 112 note 4, cites the Admiralty Digest 12314, correspondence from 
the Solicitor to Admiralty dated 18 December 1849 and other official correspondence, to support the 
statement that: "Such [great Chinese 'piracy'] claims following upon equally exhorbitant demands for the 
destruction of the Borneo pirates by Her Majesty's ships and vessels precipitated the repeal of the law 
which had been under consideration since the Fall of 1847. "The great Chinese claim involved an action in 
1849 in which 1800 "pirates" were attacked and 400 killed with British casualties of only one man slightly 
wounded, and two days later an attack on 3,000 Chinese "pirates" killing 1,700 with no British loss of life. 
Id. 107-109. The bounty paid under the Act of 1825 was over 42,000 Pounds. 

166. 13 & 14 Vict. c. 26 (1850). Due to a delay in the anticipated date of Parliamentary action, a further 
Act had to be passed to allow the repeal to take effect retroactively, on the 1st of June. 13 & 14 Vict. c. 27. 
The reason for the confusion is adverted to in the preamble to the second Act. 

167. The Charter Act of 1833, 3 & 4 Will. IV c. 85 (1833) required the Company to close up all its 
remaining commercial business, but left it as the "trustees" for His Majesty the King of England in his 
capacity as sovereign in India. For a brief analysis of the effect of this Act in the light of the overall 
evolution of the Company and its relationship to the Crown, see Ilbert, op. cit. note 41 above, at p. 81-90. 

168. 13 & 14 Vict, c.26 (1850) sec. III. See the Slave Trade Act of 1819, 59 Geo. Ill c. 97. The bounty, 
administered at the Crown's discretion, was in fact continued as "prize money " under various statutes and 
regulations until 1948. 12 & 13 Geo. VI c. 9 (1948). Summary histories of the British law of prize are in 
Knauth, Prize Law Reconsidered, 46 Columbia Law Review 69 (1946); Colombos, International Law of the Sea 
(4th ed.1959) ch. XXI. 

169. 13 & 14 Vict. c. 26 (1850) sec. I. 

170. Id. sec. II. 

171. The Segredo, Otherwise the Eliza Cornish, 1 Spink Ecc. & Ad. 36 (1853), 3 BILC 780. 

172. Id. 48 (787). 

173. The Magellan Pirates, 1 Spink Ecc. & Ad. 81 (1853), 3 BILC 796. 

174. Id. 83 (797). 

175. Id. 83 (797-798). 

176. See text at note 11-32 above. 

177. U.S. v. Smith, 18 U.S. (5 Wheaton) 153 (1820), discussed in text at notes 111-91 sq. 

178. The Magellan Pirates, cited note 173 above, at 83 (798). 

179. U.S. v. Klintock and U.S. v. Palmer et al., cited at note 16 above. These cases and their place in the 
evolving American jurisprudence are discussed in text at notes 111-75 sq., Ill— 81 sq. and III-163 sq. above. 

180. Perhaps Dr. Lushington was misreading M. Hale, Pleas of the Crown (1685 ed.), discussed at note 
1-134 above. 

181. The Magellan Pirates, cited at note 173 above, 83 (798). 

182. Id. 

183. Id. 83-84 (798). 

184. Id. 

185. See text at note 170 above. 

186. The Magellan Pirates, cited at note 173 above, 88 (801). The "murders and robberies" included the 
killing after the capture of the Master of the Eliza Cornish and a passenger who was part owner of the vessel. 
The capture had been effected by intimidation, without direct violence. 

187. Id. 89 (801-802). 

188. The Segredo case, cited at note 171 above, was a property adjudication, but Dr. Lushington in that 
case had held without any analysis at all that whether the takers of the vessel had been "pirates" or 
"insurgents" would make no difference to the result, which rested on English municipal law and the 
authority of the acting Master to sell an unseaworthy vessel. There are legal problems in trying to reconcile 
this decision with the conception of a Master's authority applied in other countries' Admiralty courts. See 
The Brig Sarah Anne, 2 Sumner 220 (1835), opinion by Justice Joseph Story, definitively resolved for the 
United States as The New England Ins. Co. v. The Brig Sarah Ann [sic], 38 U.S. (13 Pet.) 387 (1839), 
opinion by Justice Wayne. Lushington 's apparent unwillingness to consider foreign precedents as 
significant raises questions about the entire concept of a uniform law of nations, or a special branch of 
"international law" being the basis of Admiralty law. The implications of this on the persuasiveness of 
English legal opinions in other courts, and in reducing the role of international law in affecting British 
actions, are great indeed, but lead too far afield for further discussion here. 

189. See text at notes 1-85 and 1-86 above. 

190. The Magellan Pirates, cited at note 173 above, 85 (799). 

191. There is no inconsistency in individuals being considered rebels, even entitled to belligerent rights 
as in a war, and at the same time traitors subject to condign punishment, or common criminals if found to 
lack soldiers' privileges for their acts of violence, or to have exceeded those privileges. "The insurgent may 



British 19th Century Practice 285 

be killed on the battle field or by the executioner," Justice Grier in The Prize Cases 67 U.S. (2 Black) 635 
(1862) at p. 673. See text at notes III-232 to III-245 above. 

192. A. Gentili, Hispanicis Advocationis (1613, 1661) (CECIL 1921) c. xv, quoted in the text at note 1-106 
above. It has already been shown in the text concluding after note 1-110 above how Gentili changed his 
argument as the interests of his clients and his perception of overall English interest changed. 

193. Id. , c. xxii and xxiii. See text at notes 1-107 and 1-110 above. 

194. The Helena, cited at note 9 above. 

195. See text at notes 27 sq. above. 

196. See notes 1-2, 1-3 and 1-35 above. 

197. See text at notes 56 sq. above. 

198. See text at notes 133 sq. above. 

199. He became Foreign Secretary also in Russell's Cabinet of 1865-66 and Gladstone's in 1868-1870. 20 
DNB 347-350. 

200. F.O. 83.2209:U.S.A., reprinted in 1 McNair, op. cit. note 64 above, 271. 

201. For Story's approaches and the battles with Marshall and how they were resolved, see the text at 
111-53 sq., 111-89 sq., and III-160 sq. above. 

202. The case is discussed in the text at notes 211 sq. below. British judges in practice have been as 
reluctant as American judges to apply the jurisdiction asserted for them here and by universal-naturalist 
jurists. Indeed, the major question presented in R. v. Keyn, [1876] L.R. Exch. Div. 63, discussed at note 
1-132 above, was whether British statutes could properly be construed to apply to acts within a foreign 
vessel even wholly within British territorial waters. The holding by a very narrow majority was that they 
could if Parliament so indicated. 

203. Quoted in text at note 200 above. 

204. See text at notes 133 sq. above. 

205. 1 McNair, op. cit., 271-272. The extent of this "right of visit" was much disputed in European 
correspondence. See Rubin, Evolution and Self-Defense at Sea, in 7 Thesaurus Acroasium 107 (1977) esp. pp. 
126-131. 

206. 1 McNair, op. cit., 272, paragraphs 4 and 5. 

207. The basic facts are set out in the text at note 171 above. 

208. Cf. the Law Officers' Opinions regarding acts against Turkish "pirates" "ashore" in text at notes 
220 sq. below. 

209. 1 McNair, op. cit., 212. 

210. Hale, Pleas of the Crown (1685 ed.) 71 defines robbery at English Common Law as a taking from a 
person with fear. The assault without a taking of property was not a felony but a misdemeanor only; the 
taking without fear is larceny or burglary, not robbery unless a dwelling house was violated. The precise 
definitions are too complex to bear repeating verbatim here. 

211. Attorney-General of Hong Kong and Kwok-A-Sing [1873] L.R. 5 P.C. 179; 3 BILC 812. 

212. 1 Imperial Maritime Customs, Treaties, Conventions Etc., Between China and Foreign States (Shanghai 
1908) 212. 

213. Article XIX. 

214. Article XXI, first paragraph. 

215. Op. cit. note 212 above at 198. The abrogation of this Treaty is contained in Article I of the Treaty of 
Tientsin. 

216. In re Tivnan, 5 Best & Smith's Q.B. Rep. 645 (1864), discussed in text at notes III-261 sq. above. 

217. Op. cit. note 211 above, 201-202. 

218. R. v. Dawson and others, 13 How. St. Tr. 451. The text held persuasive in Kwok-A-Sing is that 
quoted at note 11-60 above. And consider the extraordinary weakness of that charge as it might have been 
applied tojurisdictional questions, which are discussed in the text at notes 11-61 sq., 11-80 sq. and 11-147 sq. 
above. 

219. Op. cit. note 211 above, 200. 

220. McNair, op. cit., 273. 

221. Id. 21 A, Opinion dated 5 January 1880. 

222. Id. 275, Opinion dated 6 July 1881 by Drs. James, Farrer, Herschell and Deane. This seems to be the 
first expression in a public international law context of a "rectification" rationale, the legal right of a state 
affected by the failure of another to do its legal duty (thus of a state that is not an officious intermeddler) to 
perform that duty for the defaulting state. That rationale seems to have been neglected in the literature 
until revived on the basis of an independent analysis by Jeffrey Sheehan in 1977. See Sheehan, The Entebbe 
Raid . . ., 1(2) The Fletcher Forum 135 (1977); Rubin, Terrorism and Social Control, 6 Ohio Northern University 
L. Rev. 60 (1979) at 67. In current analysis, the concept rests not on any concept of "necessity" but on the 
international law of self-defense as codified in article 51 of the United Nations Charter and interpreted in 
the light of general principles of municipal law relating to quasi-contract. See h. LA., Restatement of the Law 
of Restitution (1937) sees. 114-115. 



286 The Law of Piracy 

223. 2 McNair, op. cit., 276. There seems to be no record of the disposition of "offenders," if any, 
captured beyond three miles from the Turkish coast; if they were not taken to British or Turkish tribunals, 
they were presumably dealt with summarily or released. 

224. Texts at notes 200 and 205 sq. above. 

225. The Law Officers in 1870, like Lushington in 1854, ignored the logic of the American precedents 
focusing on jurisdiction. See text at notes 111-64 sq. above. 

226. 1 McNair, op. cit., 272-273, Opinion dated 11 August 1870. 

227. See text at notes 1-106 sq. and 1-110 above. 

228. 1 McNair, op. cit., 273-274, Opinion dated 4 August 1873. 

229. See text at notes 72 sq. above 

230. The Company was succeeded by the Crown as the governing power in India through legislation 
following the Indian Mutiny of 1857. The principal Act was the Government of India Act of 1858, 21 & 22 
Vict. c. 106 (erroneously cited as c. 108 in Ilbert, op. cit. note 41 above, 95 note 2). 

231. Discussed above at notes 150-155. 

232. The following recitation is based on research done brilliantly by Nicholas Tarling in his Cambridge 

Ph.D. Dissertation cited note 157 above at pp. 92-99. 

233. The leading historical work on the 1870s period of British expansion into the Malay Peninsula is 
Parkinson, British Intervention in Malaya 1867-1877 (1964). It ignores the legal issues focused on here. 

234. On the British administrative arrangements, see note 151 above. 

235. The legal situation was complex because the British, having conceded Thai pretentions in 
Trengganu in 1826, anticipated eventually establishing their own supremacy there and took every 
opportunity to assert Trengganu's "independence" from Thailand. Thai rights were reconfirmed by the 
British Foreign Office after a bombardment of a Malay fort near Kuala Trengganu, the capital and 
principal port of the "state" in 1862. The principal documents are in Parliamentary Papers 1863 XLIII 299. 
They are analyzed in some detail in Rubin, Piracy, Paramountcy and Protectorates 54-70. The Colonial Office 
position is still occasionally adopted as if the treaty of 1826 and later correspondence did not exist. See 
correspondence by A.J. Stockwell and A. P. Rubin in 77 AJIL 404-407 (1983). 

236. The East India Company's Governor General in Council in India was called the "Supreme 
Government" by subordinate officials in nineteenth century documents. 

237. Of course, the Mohamed Saad case was expressly decided on another point — the existence of 
belligerent rights in an unrecognized claimant to public authority; but the British municipal law 
definition's emphasis on animum furandi, the motive of personal, not public, gain, translated the same point 
into British municipal law without regard to "recognition" or other political acts of the Crown. See note 
11-49 above. 

238. Tarling cites Straits Settlements Act XII of 1857. 

239. Parliamentary Papers 1872 LXX 661, C. 466, [hereafter cited as C. 466] 1 (letter from Anson to the 
Earl of Kimberley dated 14 July 1871) and 2 (Report dated 1 July 1871 from Commander Bradberry to the 
Lieutenant Governor of the Straits Settlements in Penang) at p. 3. Rajah Moossa was the son of the Sultan 
whom the British recognized as sovereign in Selangor, and brother-in-law of one of the principal rivals for 
real power under the nominal authority of the Sultan. 

240. Long Malay knives with a wavy blade. 

241 . Another of the Sultan's relatives and rival of his sons for royal power. There is a useful genealogy of 
the Selangor royalty in C. 466 at p. 30. 

242. Id. 3. 

243. Id. 4-5 (letter from Mr. Cox to the Lieutenant Governor of Penang dated 30 June 1871). 

244. Cp. as to the attitude expressed and its implications for the use of the word "pirate" to justify 
British military activity in disregard of both the English criminal law regarding "piracy" and the limits the 
international legal order places on the reach of British jurisdiction on the one hand, and the law of war on 
the other, the Serhassan (Pirates) cited note 161 above and the discussion that follows it to note 164. To the 
Malay nobles dominant in Selangor at the time, the British imposition of what must have seemed English 
criminal law on territory which the inhabitants regarded as independent must have seemed monstrous. To 
them the British use of force was a declaration of war, if indeed the mere disregard of Malay sovereignty in 
Selangor did not itself compel a war by the Malays for survival as a society. Jurgurtha viewed the Roman 
hegemony that way. See note 1-61 above. 

245. C. 466 p. 7. 

246. Id. 8. 

247. Id. 8-10. 

248. Id. 14-15 (news account from the Penang "Argus" dated 1 July 1871). There is an obvious 
discrepancy in numbers. There is no way with available documentation to resolve it. But from Bradberry 's 
account of the arrest of three and a later report of five more being sent to Malacca by the Sultan whom the 
British "recognized" together with the queue of a sixth who had died while in the Sultan's hands, it can be 
conjectured that the Argus had simply anticipated a more successful British operation than actually 
occurred. See id. 18-19 (Anson to Kimberley, dispatch dated 28 July 1871). 



British 19th Century Practice 287 

249. Id. passim. Anson's advice to the Sultan, undated but apparently written between 7 and 21 July 1871 
is at pp. 19-23, including "thanks" for "outlawing the rebellious and piratical Rajahs" (p. 22). The 
"power" document given by the Sultan to Oodin is a "renewal" (on British advice, to avoid the 
implication that Oodin had not been the proper Agent of the Sultan in the days of Mahdie's dominance) 
dated 22 July 1871 of a document originally issued on 26 June 1868. The authenticity of the original had been 
challenged by Mahdie. Id. 24, Report by C.J. Irving (Auditor General) to Anson dated Singapore, July [28? 
29?] 1871 . It is not proposed to disentangle the various claims to the throne in this place; it seems clear that 
Rajah Mahdie had a colorable claim, as Mohamed Saad had had in Kedah thirty years before. 

250. Id. 31, Kimberley to Anson dispatch dated 26 September 1871. 

251. Id. 33-34, Memorandum from Robinson to Blomfield dated 14 July 1871. 

252. Id. 36, Vice-Admiral Sir H. Kellett on board H.M.S. Salamis at Yokohama to the Secretary to the 
Admiralty in London, 2 August 1871. 

253. The letter was printed in the Times on 13 September 1871, p. 9 cols. 1-2 under the head: "The 
Destruction of Salangore. " It was written in reaction to the Report to Acting Governor Anson dated 6 July 

1871 by Commander George Robinson, quoted in text at notes 244-247 above, which had been reprinted in 
the Times on 5 September 1871, p. 3 cols. 5-6. 

254. The Paris Commune of March-May 1871 was a very recent memory and trials of the leading 
communards, called "communists" in the English newspapers of the time, were going on in September when 
this correspondence concerning Selangor appeared. 

255. Summarized in note 249 above. 

256. 75 CTS 353. Article V says: "The King of Salangore engages to seize and return to Pulo Penang, any 
offenders, such as pirates, robbers, murderers and others who may escape to Salangore ..." There is much 
that is doubtful about the negotiation, interpretation, and British implementation of the 1825 Treaty. For 
example, the East India Company, not Great Britain, was the non-Malay party and the Company had 
ceased to administer the Straits Settlements in 1858. See note 230 above. But this is not the place for further 
analysis of these oddities of British Imperial law. See Rubin, Personality 208-218. 

257. This letter is referred to in a lead article in the Times on 22 September 1871, p. 7. cols. 2-3, and 
provoked a reply from Maxwell dated 24 September 1871, printed in the Times on 27 September 1871, p. 10 
col. 6. Neither the lead article nor Maxwell's reply gives the date of "Singaporean's" letter, and I have 
been unable to find it in a page-by-page search of the microfilm edition of the Times 1-22 September 1871. 1 
cannot explain the discrepancy and must leave further research to somebody with sharper eyes than mine 
or a different microfilm set. 

258. The Times, 22 September 1871, p. 7 col. 2. 

259. Maxwell was writing from Coblenz (his first letter was not identified by place) on 24 September 
1871. 

260. I.e., his authorized spokesman. The reference seems to be to the Merovingian practice in medieval 
France, which led to the seizure of the Throne itself by the major-domo, Maire du Palais, Pepin the short, son of 
Charles Martel, in 751 A.D., to become the first Carolingian King of France. 

261 . Maxwell here uses the vocabulary of John Austin, the great formulator of legal "positivism" in the 
19th century. Austin defined "law" so narrowly as to exclude customary or other laws not prescribed by a 
"political superior." "[R]ules of this species constitute much of what is usually termed 'International 
law,' " which, in turn, he denominated "positive morality. " Austin, The Province of Jurisprudence Determined 
(1832, Library of Ideas ed. 1954) Lecture I p. 11-12 . Austin's definitions, superficially very attractive, on 
closer analysis lead to insurmountable inconsistencies and have been much modified by later positivist 
jurists. See, e.g., H.L.A. Hart, The Concept of Law (1961) 208-231. To "naturalist" jurists, the "legal" 
essence of "international law" has never been in doubt because the distinction between community morals 
and "law," particularly the law applied by Common Law or similar courts in the absence of statute, is 
almost non-existent. To "positivist" jurists today, reference to "morality" is anathema, and there is no 
doubt as to the essence of international law, properly so called, being "legal" by any useful definition. This 
is not the place