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Robbery On The High Seas

Piracy, or "robbery on the high seas," has existed for as long as people and commodities have traversed the oceans. The ancient Greeks, Romans, and Chinese all complained of it, and all created naval forces to fight pirates. The word "piracy" comes from the Latin pirata, "sea robber," and before that from the Greek peirates-"brigand," or "one who attacks." From almost the beginning of state-sponsored navies, piracy suppression has been one of their major responsibilities- when Julius Caesar was captured by pirates in 76 BCE, the first thing he did after paying the pirates' ransom and being released was to fit "out a squadron of ships to take his revenge."

Who owns the sea? Who has rights of navigation through its waters? Who is responsible for protecting ships at sea? For most of human history, the high seas were seen as vast, dangerous, uncharted regions filled with demons and dragons. In premodern times, the sea was a space apart from society. -.Amr ibn al--.As, a seventh-century Arab military leader who was responsible for the conquest of Egypt in 640, observed, "The sea is a boundless expanse, whereon great ships look tiny specks; nought but the heavens above and waters beneath; when calm, the sailor's heart is broken; when tempestuous, his senses reel. Trust it little, fear it much.Man at sea is an insect on a splinter, now engulfed, now scared to death."

Throughout much of human history, therefore, it was assumed that the seas could not be owned, occupied, or governed. Fighting pirates at sea, although desirable, was beyond the jurisdiction and ability of most "states," whether feudal or national. Historically, a state's sovereignty stopped at the shoreline. The world's oceans remained open-access, "common pool" resources. "How can a country control the seas?" asked the ruler of Macassar in the early seventeenth century, when the Dutch were attempting to monopolize the spice trade: "God has made the earth and the sea, has divided the earth among mankind and given the sea in common. It is a thing unheard of that anyone should be forbidden to sail the seas."

As commercial trade expanded, coastal communities over time evolved maritime practices to earn money from passing merchantmen. These practices ranged from the piloting and provisioning of ships, to extortion, to outright pirating. In these early years, piracy was not just an enterprise of criminals but a widespread practice of some seafaring communities, including the Bugis and Riau in the Malay world, Iban raiding and pirating communities on the west coast of Borneo, the Iranun around Jolo and the Sulu Sea, and others in Vietnamese and Chinese coastal areas.

Lured by the spice trade, and later by the tea trade with China,Western European powers competed with each other to expand their trade networks and overseas colonies in these regions. As maritime trade increased, so did piracy.Many navies were created in the fourteenth and fifteenth centuries to protect their shipping and trade from piracy, which was then widespread. However, absent a navy, a state had only limited means of redress or protection.

Three distinct but complementary legal concepts evolved by which states without strong navies could attempt to control attacks on their commerce: letters of marque, commissions for privateering, and prize law. The first two provided for the issuance of "letters of marque" or commissions as privateers, conferring limited authority upon individuals to capture ships and cargoes, for which service they would receive recompense. Prize law asserted state control over the process, by determining the value and distribution of captured ships and goods. The earliest known letter of marque issued in England dates to 1295, when Bernard Dongresilli was given a letter against Portugal, the people of Lisbon in particular.

Thousands of such letters were issued in England. For example, in 1414, King Henry V of England granted letters of marque against the property of the town of Leydon (now Leiden, in the Netherlands) to the value of the debt owing to John de Waghen; previous English kings had sought legal restitution for de Waghen's losses without response. In 1569, Queen Elizabeth I granted letters of marque to the Winter brothers against the Portuguese in recompense for losses, but unlike under previous letters, the brothers were specifically required to surrender the letters when the losses were satisfied. The letter of marque allowed what today might be considered minor acts of war while guaranteeing the maintenance of a general state of peace between states. To ensure that seafarers acted appropriately and did not precipitate open conflict, letters of marque became more regulatory in nature. The Crown could take legal action against letter holders who acted outside the prescribed terms.

Thus, in 1484, the king made a proclamation against piracy, specifying that all ships leaving English ports must leave behind sureties for their behavior. Similarly, in 1578 all English ships were required to carry letters signed by the Admiralty before they could leave English ports. Initially the issuance of letters of marque in England was the prerogative of the Lord Chancellor, but from 1357 they were issued by the Lord High Admiral in theHigh Court of the Admiralty. This began a process of defining which actions were acceptable and which were not. A "captor"-that is, the holder of a letter of marque who captured a foreign ship or goods-now had legal sanction within his own country for attacking the shipping of another state.Without this protection, his actions would have been considered piracy.

Privateering, as distinct from attacking shipping under letters of marque, was evident as early as the eleventh century; by the seventeenth century it was widespread in the evolving global economic system. By the end of the seventeenth century, the issuing of letters of marque was widely considered a belligerent act, and so they were used less often, replaced by commissions for privateering. Personal seeking of restitution for private losses through authorized theft at sea disappeared, in favor of privateering in time of war-in effect, guerre de course under contract. There were a number of reasons why a sovereign might commission privateers.Most important, it offered a way to destroy a rival's shipping and create economic turmoil at virtually no cost to the issuing state.

Large professional navies were expensive and often nonproductive; privateering represented a cheap form of naval warfare. There are numerous examples of English sovereigns commissioning privateers. In 1543, the king licensed as many ships as possible against the Scots and the French; the privateers could keep all spoils and acted under the protection of their sovereign. But the British government did not want to lose all control-in 1563 instructions were issued condemning piracy and privateering without commissions. Suspected perpetrators were to be arrested, and all armed ships had to pay securities before sailing to ensure their good behavior.

For a state that had no navy or only a small one, privateers often constituted the only way to conduct naval warfare. Early examples are the three Anglo-Dutch Wars (1652-. 54, 1665-.67, and 1672-.74), which were among the first great oceanic wars fought over trade. England actively sought war, on the assumption that by taking another state's trade it would be able to increase its own wealth. In the first war, English privateers wreaked havoc on Dutch shipping, although toward the end the Dutch responded in a similar manner. Estimated shipping losses were between three and four hundred vessels for the English and about 1,250 for the Dutch. In the second war, shipping losses appear to have been about the same, but since England's merchant fleet was smaller, its losses were proportionally greater. In the third war, the Dutch kept their own vessels in harbor and used privateers to attack English shipping. The resulting losses undermined business confidence in England, leading eventually to withdrawal from the war.

In England, numerous sets of "instructions to privateers" were issued between 1649 and 1780. In general, prospective privateers had to fulfill the requirements in the instructions before appearing in the High Court of the Admiralty to request commissions. The claimant would have to provide a list of ships and crews to be used, a budget for reimbursable costs, and a sufficient bond. Prizes had to be kept whole and be brought into English ports, and there be assessed by the High Court of the Admiralty. A key issue for captors, whether holders of letters of marque or commissions as privateers, was their rights over the ships and goods they took as prizes. It was through the regulation of prizes-how they were valued, who received shares-that the state placed controls on privateering.

However, the use of private ships to harass one's enemies has a long history, predating letters of marque and commissions for privateering.Many early documents show that the English king could lay claim to all or part of the value of prizes under the concept of the "droits," or rights, of the Crown. This tradition maintained that all prizes belonged to the sovereign, who might give them in full or in part to the captor. For example, in 1205, the king granted a captor half of the captures taken from the king's enemies. The sovereign could be fickle. In 1337 the king directed the bailiffs at Great Yarmouth to give all the ships and goods taken to the captors but in 1341 reclaimed these prizes. In 1544, King Henry VIII issued a blanket authorization against France for privateers, allowing privateers to keep all of their prizes.

In 1563, the Lord High Admiral required inventories and bail for prizes so that the courts would know precisely what had been captured and its exact value. Privateers had to promise not to break up their prizes and sell them, to turn in their prizes to the government, and to pay the Admiralty a tenth of the value. In 1603 a ship captured without proper letters was condemned and confiscated by the Lord High Admiral.15 This became a precedent, whereby prizes taken illegally would go to the Lord High Admiral, while the captor could be considered a pirate and treated as such.

A number of other regulations were issued to control the distribution of prizes. In 1589, an order of council was issued requiring all captures to be brought for adjudication before the High Court of the Admiralty; the first formal sentence of condemnation of a lawful prize appears in the records for that year. In 1590, the Lord High Admiral instructed the High Court of the Admiralty that all prizes should be fully inventoried. In 1649, a distinct Prize Division was created in the High Court of the Admiralty to handle prize cases. Thereafter the High Court of the Admiralty dealt with peacetime captures, the Prize Court with wartime captures.

In 1665 and 1677 the king issued a number of rules to be observed by the High Court of the Admiralty in adjudicating prizes. In 1692 the first Prize Act was passed, containing provisions for the sharing of proceeds. Before this act was passed, shares had been apportioned by agreement, custom, or the Crown. The sale of prizes in neutral countries was common in early times but discouraged later, probably due to the difficulty of the king and the Lord High Admiral in getting their shares-a tenth and fifteenth, respectively. The Prize Act gave captors a statutory right to their prizes, which had previously been at the pleasure of the Crown.

Over time, national prize courts were authorized to act for the Crown, without its direct control. For example, in 1702, the High Court of the Admiralty was empowered to judge prize cases. In 1708 under the Cruiser's Act, Queen Anne waived her rights to droits of the Crown; captors would receive all the value of their prizes. In 1709, a regulation provided that all prizes of holders of commissions or letters must be brought before the High Court of the Admiralty. Finally, in 1739, the lords of the Admiralty required that the judge of the High Court of the Admiralty hear all prize cases. One major cause for the sudden rise in piracy during the seventeenth and eighteenth centuries was the passage of the British Navigation Acts in 1651. These directed that goods could be brought into England or English possessions only by English ships or by ships of the countries where the goods originated. As a result, foreign tobacco and other agricultural products imported on English ships could be sold in England and its colonies at low prices. The same goods imported on non-English ships were charged with additional duties.

Rejecting this monopoly, many merchants in the American colonies traded with privateers, often with the knowledge and tacit support of local officials. Undoubtedly, many privateers could really be considered pirates, since they did not take their spoils back to England to be divided, as they were required to do. In cities and towns all along the Atlantic coast, privateer loot was "imported" in defiance of the Navigation Acts: "Very often the same merchants and officials who furnished the illegal market for privateer plunder also outfitted expeditions in exchange for guaranteed shares in a ship's loot." This trade reached its climax in 1700, when there were so many pirates along New England's coastline that one official described the region as being in a "state of war."

Many pirates began to focus on the lucrative trade between England and its North American colonies. James Logan, colonial secretary of Pennsylvania, estimated in 1717 that "there were at least fifteen hundred pirates cruising at any one time off the coast of North America and that no one could travel safely by ship." During this period, piracy reached new heights, including the infamous exploits of Edward Thatch (or Teach), alias Blackbeard the Pirate, who was finally killed in 1718, and Captain Bartholomew Roberts, who reportedly pirated some four hundred ships during just "three years of looting and burning" before he was finally captured and executed. The Royal Navy responded to the piracy threat by setting up convoys to protect merchant ships, or even offering-for a hefty fee-to transport cargo on its warships.

Nevertheless, it proved extraordinarily difficult to track down and eliminate the pirates. There was simply too much money in piracy, and "the profit to be made from such convoy duty made many Royal Navy captains less than zealous to destroy the pirates who were the indirect source of their profits." It took a concerted effort by naval authorities to suppress piracy; only by 1725 had the most infamous pirates been captured and hanged.

Bruce A. Elleman, Andrew Forbes, and David Rosenberg, Editors. Piracy and Maritime Crime. The thirty-fifth title in the Newport Papers monograph series. Naval War College Press Newport, Rhode Island. January 2010.


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