Democracy, Equality, and a Bottle of Rum:

Pirate Law from the Late 17^th Century through the Early 18^th Century

 

 

Francesca Cedor

Spring 2004

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents

 

I.                      Introduction…………………………………………………………………….2

 

II.                   Origin, Background, and Sources……………………………………………..2

 

III.                Family, Marriage, and Sexuality.……………………………………………...8

 

IV.               The Law: Pirate Codes of Conduct…………………….…………………....11

 

V.          Social Order and Enforcement……………………………………………….19

 

VI.         Discipline and Punishment…………………………………………………....24

 

VII.            Pirates’ Dealings with Other Pirates………………………………………....28

 

VIII.         Pirates’ Dealings with Outsiders (Non-Pirates)..………………………….…32

 

IX.               Conclusion……………………………………………………………………...35

 

X.                  Bibliography……………………………………………………………………37

 

XI.               Electronic Appendix........………………………………………………......….37

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I.                     Introduction

As the 2004 presidential election takes full swing, citizens and scholars alike will ponder the effectiveness of democracy in America.[1] Is a representative democracy really democratic? Instead of every individual having an equal vote in a Presidential election, members of an electoral college vote based on their respective state majority votes.[2] As a result of such a system, fifteen presidential candidates have won presidential elections without the majority of the popular vote between 1912 and 1996.[3] One could imagine a much different governmental structure where every man’s voice is heard and where every man’s vote counts. Taken further, one could conceive of a legal system where even the leaders are fully subject to the rest of the group’s decisions. Such a system has in fact existed. While arguably not “civilized” individuals, pirates from the late 1600s through the early 1700s practiced a nearly perfect democratic system in addition to a life of crime. This paper recounts the cultural and social background of why such an order came to be, describes the social aspects of such a system, and explores the legal structure and workings that developed from such a system.

II.                  Origin, Background, and Sources

A.     Definitions and Distinctions between Pirates, Buccaneers, Privateers, Freebooters, and Corsairs

 

Before delving into a particular group of individuals and transporting back into a specific period of time, it is appropriate to begin with the distinctions among the different groups of people that practice piracy. The particular type of individual this paper focuses on is the “pirate,” who does not identify himself as a buccaneer, privateer, freebooter, or corsair. In its broadest sense, this term refers to “someone who robs from others at sea, and acts beyond the law.”[4] The following distinctions in terminology are important because in order to avoid conviction and hanging under Admiralty law jurisdiction, pirates would try to conceal their crimes by convincing others that they were privateers or buccaneers, groups which the general public considered more acceptable.[5]

Buccaneer was an early 17^th century term that referred to French backwoodsmen who occupied the hunting grounds of Hispaniola,[6] the area that now geographically covers Haiti and the Dominican Republic. [7] Derived from the French word for barbecue, or boucan, the name buccaneer described the way the hunters cooked their meat.[8] Although Spanish soldiers originally chased the early buccaneers out of inland Hispaniola,[9] individuals later began to associate the term buccaneer with the English and French plunderers of mainland Spain, “who acted as semi-legalized pirates, based principally in Port Royal and Tortuga.”[10] The French buccaneers, in particular, were referred to as freebooters and filibusters, “named after the small fast flibotes (fly boats) they sometimes used.”[11] After the terms freebooter and filibuster fell into disuse, the 19^th century revived these nominations, redefining filibuster as “a smuggler or blockade runner.”[12]

                  A privateer was kind of a legally hired pirate. The term “privateer” was used interchangeably to refer to the armed vessel itself, the ship commander, or the ship crew.[13] Privateers were fitting names for such ships because, unlike sovereign or government owned naval ships, they were privately owned.[14] More notably, governments commissioned these ships to capture merchant vessels of belligerent countries[15] and to attack enemy ships in times of war.[16] This contract or commission, known as a “Letter of Marque,” generally entitled the government to twenty percent, and like shares, of the privateer ship’s profits.[17] Therefore, privateers were licensed pirates who neither plundered their own government’s ships nor assaulted their fellow countrymen.[18]

                  The French word for privateer was la course. [19] As a result, the privateers who plundered the Mediterranean See were generally known as corsairs. [20] Some scholars suggest that corsairs, like privateers, were not technically lawless pirates, because they acted with government approval, attacking only ships from opposing countries.[21] For example, the Barbary corsairs of the North African coast considered themselves privateers whose mission was to fight religious enemies of the states of the Barbary Coast, under whom they had contracted.[22]

B.     Places, Time Periods, and Peoples Affected by Piracy

In addition to the different terms for individuals who practice pirate-like activity, piracy affected many places, and attracted many types of peoples. “Pirates marauded during many eras and in all parts of the world.”[23] In the Ancient World, “[d]uring the period between the end of the Bronze Age and the rise of the Roman Republic, piracy was commonplace throughout the eastern Mediterranean,”[24] affecting both Greece[25] and Cilicia.[26] Prior to the establishment of the Sui Dynasty in 589 AD, pirates began raiding the South China Sea.[27] Medieval pirates plagued northern Europe as well as the western Mediterranean.[28] In terms of honorable piracy, the Elizabethan Era introduced privateer heroes such as Sir Francis Drake and Sir John Hawkins,[29] while the French Huguenot pirates participated their own way in the wars between France and Spain in the mid-16th century.[30]

This paper primarily focuses on pirates between the 1600s and the 1730s, the time just prior to and including the Golden Age of Piracy (approximately 1690 until 1730).[31] More specifically, this paper introduces the Saint Mary’s pirates who were also known as the “Madagascar marauders,”[32] (late 1600s – 1720s) and the Anglo-American pirates (early 1700s), but from time to time adds information from other eras and types of piracy for purposes of interest and comparison.

C.     A Brief Discussion Concerning Sources from the Golden Age of Piracy

 

Since there is a lot of controversy concerning whether particular works of pirate lore are fact or fiction, it is essential to consider the sources from which the subject matter is derived. Legends about famous pirate captains, for example, have been drawn from sparse amounts of documentation.[33] What little that is known about pirates have been drawn from courtroom records, confessions from piracy trials, the recollections of former pirates, and from individuals who encountered pirates, including former victims and naval officers. [34] A more uncertain source, A General History of the Robberies and Murders of the most notorious Pyrates which was allegedly written by Captain Charles Johnson, [35] will be discussed infra in regards to the famous pirate island of Libertalia. The main volumes cited in this paper reflect how contemporary authors, scholars, and historians understand pirate history from a variety of sources. This paper focuses on particular areas of these histories to highlight pirate practices and institutions and to analyze them from a legal perspective.

D.     How and Why Men Chose to Become Pirates

 

Unless the individuals were born into the family trade, by having been born in a pirate port that their kin occupied for generations,[36] piracy was a voluntary vocation and path of life. [37] Large numbers of men chose this way of life because they “directly challenged the ways of the society from which they excepted themselves.”[38] Before turning to piracy, most pirates had previously been employed as either navy sailors, privateers, or merchant seamen.[39]

Pirates who previously served in the navy had undergone harsh ship conditions including food shortages, low wages, high mortality rates, and severe discipline.[40] In terms of discipline,

[b]y the 1680s…[navy] captains routinely imposed their tyranny through intimidation, calculated viciousness, and physical torture. Many literally got away with murder, when seamen died of inadequate food and overwork. When all else failed, officers beat crewmen with their fists, ropes, belts, sticks, and whatever else came to hand.[41]

 

Likewise, pirates who had formerly served as privateers “knew well that such employment was far less onerous than on merchant or naval ships.”[42] Compared to navy employment, pirate ships generally provided more food, significantly higher wages, and shorter work shifts.[43] While pirates also experienced many of the challenges of a life at sea, such a livelihood appears to have been a favorable alternative to naval ship conditions.

The largest group of pirates, individuals who had been merchant sailors, experienced a different transition into a pirate-hood. Even though merchant sailors were technically volunteers as were the navy sailors and privateers, most merchantmen did not become pirates until after a pirate ship captured them[44] and took their merchant vessels.[45] Upon capturing a merchant ship, “[t]he pirate captain or quartermaster asked the seamen of the captured vessel who among them would serve under the death’s head and black colors, and frequently several stepped forward.” [46]

Notably, this “voluntary” career adjustment seems to be the result of coercion instead of enticement or incentive. In more recognizably voluntary situations, a few bold merchant ship mutineers became pirates after seizing control of the merchant vessel themselves.[47]

Otherwise, individuals who for whatever reason simply decided that their destiny was to become a pirate just needed to “find a ship heading for the Indian Ocean [or wherever else he wanted to rove].” [48] Generally, “[s]ea rovers came from many nations and every social level – but almost always from a seafaring community. [49] It is important to mention, however, that not all pirates were sailors. Some pirates were literate, some were skilled craftsmen, and at least one of the Saint Mary’s Pirates had been a nobleman.[50] Nevertheless, since the great majority of pirates “necessarily came from seafaring employments,”[51] most pirates, like most mariners, came from “the lowest social classes.” [52] Royal officials condescendingly considered pirates to be “‘desperate Rogues’ who could have little hope of life ashore.” [53] These characteristics, along with the knowledge of such conceptions of themselves, “served as bases of unity when men of the sea decided, in search of something better, to become pirates.”[54]

 

III.              Family, Marriage, and Sexuality

 

A.     Marriage and Family

 

Evidence of this area of pirate life is lacking and uncertain. Nevertheless, a life at sea appears to have freed most pirates from family ties and obligations back on land. [55] Records from pirate ships and from trials have rarely mentioned pirates’ wives and children. [56] In fact pirates were generally against taking married men, in the interests of preventing desertion.[57] Since pirates were just common folk, their private lives remained so, and stories of famous captains primarily focused on their professional activities.[58]

The young age of pirates also seems to have contributed to this lack of information. For pirates that settled on Saint Mary’s Island, twelve miles northeast of Madagascar,[59] “[p]iracy was a young man’s game.” [60] Saint Mary’s pirates entered the profession in their early twenties, and settled down to an early retirement in their thirties.[61]

A man in his early twenties probably was not married and had relatively few ties at home. Once aboard ship, he had his comrades formed an independent society. Perhaps the best comparison is to today’s collegiate and professional athletic squads. Under the leadership of a charismatic older captain, relationships were characterized by tight male bonding. The men lived, worked, and suffered as a team. They also celebrated their shared triumphs with boisterous parties.[62]

The later Anglo-American pirates, who were active between 1716 and 1726, ranged in age from seventeen to fifty years. [63] The mean age was 27.4, with the median at 27.[64] “[T]he 20-24 and 25-29 age categories had the highest concentrations, with thirty-nine and thirty-seven men, respectively.”[65]

Existing evidence suggests that pirates and even governments stayed out of pirate family affairs. For example, in 1700 the government of Réunion Island permitted each family to exercise its own autonomy in regulating the conduct of its members.[66] Evidence also suggests that births outside of marriage were common among pirates, and that many pirate men and women tolerated his or her spouse’s promiscuity.[67]

B.     Promiscuity and Homosexuality

 

Often held rumors about pirate life involve pirates’ sexual promiscuity with women and boys. Despite the prevalence of babies born to pirates outside of wedlock, and the liberal views towards spousal promiscuity mentioned above, pirate codes had strict laws against promiscuity.[68] Additionally some pirate codes prohibited homosexuality. [69] While scholars do not suggest that these activities never happened, they do propose that some pirate crews frowned upon such practices. For example, there are accounts of pirates who intentionally brought false charges of homosexuality against their enemies.[70] Some pirate codes specifically prohibited the introduction of a “boy or woman” on board ship, [71] and yet there were captains who were known to have “carried off boys and young men.” [72] There is also a story about how one captain angered his crew by “promoting his cabin boy to first mate over older and more able mariners.”[73]

                  Scholars with different views suggest that homosexuality and promiscuity was not that big of a deal. Some ship codes did not even mention homosexuality.[74] From this information, David Cordingly proposes that “we may assume either that homosexuality was never an issue among them, or that it was so widely practiced and tolerated that it was not necessary to include it in any code of conduct.”[75]

C.     Women Pirates

Even though this paper focuses exclusively on male pirates, it is worth mentioning that piracy was practiced by the fairer sex as well.[76] Since most mariners were men, and most pirates had previously been mariners, piracy was predominantly a male activity.[77] The idea that it is unlucky to have a woman at sea was just a myth and was not necessarily believed by sailors. [78] Rather, women married to mariners often accompanied their husbands, while unmarried women traveled as ship passengers.[79] Eighteenth-century British warships carried female servants who were paid by the government.[80] The women of some countries even went along with men on fishing merchant, and whaling expeditions. [81] These women, however, rarely became pirates. [82] Nevertheless, “[a] few women sailed with the pirates of the Atlantic and the Caribbean,”[83] and “several women sponsored piracy as rulers of corsair havens.”[84] Two famous female pirates who actually existed, Anne Bonny and Mary Read, were convicted of piracy in 1720.[85]

 

IV.               The Law: Pirate Codes of Conduct

 

A.     General Code Ideology

 

1.       Egalitarian and Democratic Ideology and Underlying Rationale

 

As pointed out above under how individuals entered into pirate-hood, the following discussion describes how pirates’ escape from tyrannical social orders and severe living conditions influenced their decisions and practices of self-governance. The pirates themselves devised and constructed the organization and social order of the pirate ship.[86] Pirates institutionalized egalitarianism aboard the ship by placing the ultimate authority in the hands of the crew.[87] As such, “[p]irates constructed [a] world in defiant contradistinction to the ways of the world they left behind, in particular to its salient figures of power, the merchant captain and the royal official, and to the system of authority those figures represented and enforced.”[88]

The most striking feature of such a world is the pirate’s implementation of a system of checks and balances. Above all, pirates wanted to “overturn the dictatorship of naval and merchant captains.” [89] Pirates empowered the quartermaster to counterbalance the powers of the captain. [90] That practice alone, however, was not sufficient for the pirates. They had a greater vision of the ability of every man aboard the ship to counterbalance the powers of other ship members. [91] On a pirate ship, “[e]very man was to have a voice.” [92] In theory, this system was very egalitarian and democratic. However, in practice, such principles were more effective on smaller ships than on larger ships with hundreds of members.[93] Despite the size of the ship, however, pirates drafted the ship’s articles to promote “equality as their fundamental principle.”[94]             

2.       Pirate Codes and Articles:

 

The egalitarian ideology and “consciousness of kind among pirates” discussed above “manifested itself in an elaborate social code.”[95] Essentially, a ship’s articles, or code of conduct, was a huge contract. Prior to embarking on “a new cruise or expedition, the entire ship’s company came together,” [96] to draw up a compact for the voyage.[97] Pirates likewise drafted a new code of conduct when electing a new captain. [98] Once written, the articles had to be agreed to by the entire crew.[99] If a pirate enlistee were to join the crew at some point during the voyage, he signed that ship’s existing articles.[100] However, pirates became subject a new set of articles when they broke away from one ship and joined another[101]           

Even though codes of conduct varied by ship,[102] most ships shared strikingly similar rules and customs.[103] “Through rule, custom, and symbol, the code prescribed specific behavior standards intended to preserve the social world that pirates had creatively built for themselves.”[104] Pirate crews used these articles to allocate positions of authority, distribute plunder among its members, and enforce discipline on those who failed to abide by the code.[105] These codes grew, sometimes resembling small-scale constitutions,[106] as the pirates found more and more rules to protect themselves and to preserve their system. [107]

Even more interesting than the development of the code are the laws and procedures that the pirates decided to include in their codes. Since pirates tried to keep their codes secret, historians have come upon the contents of these articles by accident.[108] In contrast to literature’s romanticized accounts about pirates’ roguish lifestyles, pirate codes contained provisions that disallowed “gambling, womanizing, fighting, and drinking.”[109] An example taken from a pirate charter written by Bartholomew Roberts’ crew allowed, “[n]o boy or woman to be allowed amongst them. If any man shall be found seducing one of the latter sex and carrying her to sea in disguise, he shall suffer death.”[110] This code also provided that “[n]one shall game for money, either with dice or cards.”[111]

A more significant example of subject matter contained within the ship’s articles concerned the distribution of booty. The ship’s articles explicitly regulated the allocation of booty.[112] Pirates received shares in accordance with their respective skills and duties. [113] For example, the “[c]aptain and quartermaster received between one and one-half and two shares; gunners, boatswains, mates, carpenters, and doctors, one and one-quarter or one and one-half; all others got one share each.” [114] This “precapitalist share system” indicated that pirates considered themselves to be risk sharing partners who wanted to abandon the hierarchal pay ranking implemented on merchant, privateer, and naval ships. [115] Marcus Rediker, a scholar in maritime history, remarks: “[i]ndeed, this must have been one of the most egalitarian plans for the disposition of resources to be found anywhere in the early eighteenth century.”[116]

From this information, one can likewise gain insight into pirates’ employment and property systems. Pirates were thieves by trade, but they all shared in the distribution of the plundered property. Moreover, pirate ships served the needs of the crew, including the pirates’ shelter, method of attack, means of escape, and storage for plunder.[117] Therefore, ownership of the ship itself was most likely co-owned by the entire pirate community aboard that ship. There is no mention of pirates having to give up their plunder when they desert a ship or leave it to join another. However, it would be difficult for a pirate to take any substantial portion of the ship with him, and there does not appear to be any evidence of any type of deed or written agreement indicating that a pirate keeps an interest in the former ship. While not many codes mention the

 

ownership of the ship itself, it is most likely that pirates completely abandon any interest in a ship after leaving the ship.

It should be noted that pirates were not the first to invent such a system of articles, or contracts as we would call them. Written contracts and articles have been around for a long time.[118] For example, the Saint Mary’s Pirates implemented “the institutions they inherited, modifying them to meet their special needs.”[119] Likewise, late seventeenth century English merchant seamen signed wage contracts. [120] In addition to setting wages, these contracts defined the voyage and documented the sailor’s promise of obedience to the captain.[121]

3.       Oath and Signature:

Not only did the crew participate in drafting the code, but every member had to agree to the provisions therein. The oath was a solemn one, often sworn with the pirate’s hand placed on a bible.[122] This oath was a voluntary one in which no man could be forced to take.[123] Therefore, if a prospective pirate or new member to a crew did not agree with the articles, he had to either back out before joining the voyage or accept the majority’s decisions during the voyage.[124] After taking the oath, the pirate could not leave the ship before the end of the voyage unless he obtained permission from the other men.[125] At first glance, this process appears to be no more than a system enforcing majority rule. Note, however, that since pirate life was voluntary, an individual could just refuse to agree to the ship’s articles and leave before the voyage began. It is also important to remember that the articles were most likely to everyone’s liking, seeing as pirate crews strove to practice equality and live lives at sea that were more palatable than those on merchant and naval ships.

The importance pirates gave to the oath reflects the social and religious backgrounds from which they came. In addition to swearing on bibles, oaths were sworn on saints’ relics.[126] A man’s word, especially in the form of a formal oath, was something that was meant to be kept.[127]

There was a sense…that a man who broke his word was beneath contempt. While on earth, an oath breaker put himself outside the law and could be killed on sight. After death, because he had profaned the holy things to which he had pledged loyalty, he was eternally damned.[128]

 

As such, this system seemed to prove effective as long as men kept oaths in such a regard as to sustain the socially and contractually binding force of an oath.

In addition to taking the oath, each member had to either sign the articles, “or if illiterate, [make] his mark.”[129] This is another aspect of the code that reveals the contractual nature of the document. “In signing the ship’s articles, every man pledged to obey the rules they contained.”[130]

4.       Saint Mary’s Island and “The Pirate Republic of Libertalia:”[131]

a.       Saint Mary’s Island

One example of unfettered pirate democracy or egalitarianism occurred on Saint Mary’s Island. This narrow island, “about 35 miles long (modern Île Sainte-Marie, also called Ambodifototra)” is situated off of the northeastern coast of Madagascar. [132] Pirates who frequented the Indian Ocean and roved the Red Sea preferred Saint Mary’s.[133] Saint Mary’s Island became a main pirate base by the early 1690s.[134] On this island, the pirates created a utopia for both residents and visiting seamen.[135] The island community was independent, with its “own institutions, customs, rules, and flag.”[136] In terms of available evidence, it is suggested that “Saint Mary’s Island [was] the only pirate island in human history,” and that the pirates there “formed what may well be the most democratic and egalitarian society in human history.”[137]

In accordance with the characteristics discussed above, Saint Mary’s pirates implemented a system of elections and were bound by the ship’s articles.[138] Pirates of this tropical island rarely imposed physical punishments, and when necessary, only did so by majority vote.[139] Moreover, in slight contrast to the Anglo-American pirates’ later, more defined system of plundering, every member of the crew received an absolutely equal share of the booty.[140] Being more egalitarian than the general pirate society, the Saint Mary’s pirates completely overthrew any sort of hierarchical system of pay.[141] However, these pirates did allocate one of their men an extra share when the majority saw fit.[142] This was presumably a reward or incentive exception. On the other end of the exception scale, pirates who displayed cowardice during battle entirely lost his share of the plunder. [143] Finally, pirates who stole from their own crew, anything valued at a half a piece of eight or more, could be marooned by their fellow crewmen.[144] Therefore, while stealing from non-pirates was acceptable as a pirate’s livelihood and fulfillment of the ship’s code, theft among pirates on the same ship was forbidden.

b.      Libertalia

Another pirate haven on Madagascar, the perhaps more famously known Libertalia, supposedly practiced a similar system to that of the Saint Mary’s Pirates. Libertalia was a Utopia where men were free and treasure was divided equally.[145] Unfortunately, there is still no solid evidence that such a place really ever existed.[146] It is difficult to determine whether or not the accounts of pirate captains and trials associated with Libertalia are mere stories, akin to those written by 19^th and 20^th Century authors.[147] Furthermore, there is a lot of doubt among scholars as to the authorship of A General History of the Pyrates, and the existence of Libertalia’s founder, Captain Charles Johnson.[148] Scholars explain that Daniel Defoe wrote several volumes on the subject of mariners and pirates including Robinson Crusoe and A General History of the Pyrates.[149] For more than 200 years, readers believed that the unidentifiable Captain Charles Johnson wrote the latter work.[150] Scholars eventually found that The History of the Pyrates was most likely written in Defoe’s hand.[151] Evidence towards this theory included Defoe’s written style and use of idiom, ideas and interests, and the fact that this was not the first time Defoe used a captain for his penname.[152]

 

B.     Social Welfare Provisions

 

One striking feature of the pirates’ plunder distribution system was that “[a] portion went into a ‘common fund’ to provide for the men who sustained injury of lasting effect.”[153] From this fund, pirates received compensation for losing their eyesight and/or appendages.[154] For example, a typical pirate could receive 100 pieces of eight for loss of an eye, 100 for loss of a finger, 600 for loss of the left arm, 500 for loss of the right arm, 400 for loss of the left leg, and/or 500 for loss of the left leg.[155] On this matter, Bartholomew Roberts’ more generous code provides that, “[e]very man who shall become a cripple or lose a limb in the service shall have eight hundred pieces of eight from the common stock, and for lesser hurts proportionally.”[156] For purposes of clarification, a “piece of eight” is equal to the “peso,” which translates into $0.96USD.[157] Overall, pirates applied this system of compensation to protect skills that certain disabilities could destroy, to attract other pirates to join their company, and to promote loyalty and a sense of unity on the ship.[158]

 

V.                  Social Order and Enforcement

 

A.     Enforcement Mechanism and Structure of the Legal/Social System

 

Under the tenets of a true, almost perfect democracy, each member of a pirate ship participates in executive, legislative, and judicial activity. The social and legal structure of a pirate ship in its most basic form designates the entire crew as the law making body, the quartermaster and the ship council as the judiciary body, and the entire crew as the enforcement body. The following discussion relates each pirate’s respective legal duties and social responsibilities.

1.       The Captain

 

Unlike most top leadership positions, the written code “made the captain the creature of his crew.”[159] The crew elected, or appointed, its captain by a majority vote. [160] In electing a captain, a crew looked for an individual with a bold temper and strong navigational skill.[161] Likewise, the captains on Saint Mary’s Island were competent mariners.[162] Such experience was necessary for the captain to carry out his responsibilities of deciding where to plunder, evaluating how much his crew would gain, and balancing those gains with the estimated loses and risks associated with the pursuit.[163] Therefore, a captain had to be market savvy, both “locally and internationally.”[164] After a victorious raid, the captain had to effectively “fence the loot.”[165] Ironically, even though the pirates’ main purpose was to steal and plunder, the captain had to be able to prevent outsiders from cheating the ship crew when buying supplies. [166] Most importantly, as with any effective leader in battle, “a captain had to manage, lead, and inspire his men,”[167] A content crew stayed unified and motivated during battle.[168]

Once elected, the captain received few privileges.[169] The captain received no more food than any other member of the crew; nor could he keep his cabin to himself.[170] As mentioned above, the captain’s unquestioned authority applied only “in fighting, chasing, or being chased.”[171] In every other matter, the crew majority governed.[172]

The crew also had the power to depose the captain, again by a majority vote.[173] For example, a captain could lose his position for “cowardice, cruelty, or refusing ‘to take and plunder [enemy] Vessels.’”[174] Occasionally, a pirate crew would execute a captain that became tyrannical. [175] Notably, the information discussed about pirate captains is seeded with information about the crew’s power over the captain instead of the captain’s power over the crew. This makes sense since the pirates intended that their system exist “[i]n stark, telling contrast to the near-dictatorial arrangement of command in the merchant service and the Royal Navy.”[176]

2.       The Quartermaster

 

Quartermasters on merchant and naval ships normally refer to experienced seamen who received a small sum of extra wages for aiding the ship’s mates with “storing supplies, coiling cables, and steering the vessel.”[177] The quartermaster was clearly not an officer on merchant and navy ships. [178] On a pirate ship, however, the quartermaster “was elevated to a valued position of trust and authority.” [179]

As with the captain, the crew elected or appointed the quartermaster.[180] As aforementioned, the quartermaster’s powers countervailed those of the captain in order to prevent the captain from abusing his authority.[181] The quartermaster also represented and protected “‘the Interests of the Crew.’”[182] The captain’s authority did not always preempt the powers of the quartermaster; rather, the captain obeyed the quartermaster in the same way as any other member of the crew in situations involving the quartermaster’s domain.[183] Even though the captain exercised unrestricted authority during battle, he had to submit to the quartermaster in routine matters.[184] For example, the quartermaster had the judicial role of settling minor disputes.[185] Here, the quartermaster “served as a ‘civil Magistrate.’”[186] Perhaps the quartermaster was in the best position to perform this function because he was also in charge of equally distributing the food and money as required by the ship’s articles. [187] In this role, the quartermaster was responsible for maintaining the supplies, and neither the captain nor the crew could take these supplies without his permission.[188]

In addition to routine ship matters, the quartermaster was a noticeable participant in battles. [189] Quartermasters could lead boarding-party attacks and sometimes even supervised attacks on vessels.[190] When victorious, the quartermaster decided what booty to seize.[191] In addition to taking gold, silver, and jewels, items that the quartermaster was required to plunder, the quartermaster had to determine how much storage space was left on the ship and the ship’s distance from markets in order to decide what other loot to take.[192] Finally, as the individual who was technically second in command, “[t]he quartermaster often became the captain of a captured ship when the captor was overcrowded or divided by discord. This containment of authority within a dual and representative executive was a distinctive feature of social organization among pirates.”[193]

3.       Other Titled Positions

 

Other titled pirate positions appear to have been more functional than legal or governmental. For example, pirates elected ranks to men perform jobs carried out by the equivalent of merchant and naval ships’ warrant officers and petty officers.[194] Among these additional titled positions were the boatswain, gunner, carpenter, cook, first mate, and second mate.[195]

4.       Council and Crew

 

The council, the highest authority on the ship, made the company’s most important decisions. [196] Here, “[p]irates drew upon an ancient custom…in which the master consulted his entire crew in making crucial decisions.”[197] Consultation of a council had also been a naval tradition. The Council of war, made up of the “top officers of a fleet or ship[,] met to plan strategy.”[198] However, the pirates modified this navy custom to fit their egalitarian and democratic ideals.[199] As a result, on most ships, every man on the ship was a member of the council.[200] The council met to discuss the best places to plunder, and how to resolve the conflicts and disagreements that arose on the ship.[201] Some crews functioned as a council governed by system of majority votes, while other ships’ councils served more like as a court. [202] The council’s decisions “were sacrosanct, and even the boldest captain dared not to challenge a council’s mandate.”[203] In other words, neither the captain nor a crew member could attempt to appeal a council decision.              

B.     Legal Procedures

 

Aside from the above descriptions of the different social positions and functions each member of a pirate ship perform, the following legal roles and procedures become apparent. The quartermaster adjudicated minor disputes and could punish minor offenses,[204] while a jury tried more serious crimes.[205] This jury was made up of the council or crew, and a “convicted” pirate could not appeal the decision. Therefore, it is apparent that the members of the crew themselves had a large role in prosecution, adjudication, and sentencing, all according to the ship’s articles.

 

VI.               Discipline and Punishment

 

A.     Avoiding Disciplinary Problems

 

Since the voluntary nature of becoming and remaining a pirate was already built into the oath system, some crews simply prevented disciplinary issues by not keeping anybody on the ship against his will.[206] Pirate oaths of honor also helped to prevent problems by reinforcing the new member’s loyalty to the crew.[207] Once the old members accepted the new men, ‘“the New Men being sworn to be faithful, and not to cheat the Company to the Value of a Piece of Eight, they all consulted and acted together with great unanimity, and no distinction was made between Old and New.’”[208]

B.     Inevitable Conflict

Nevertheless, conflict tends to arise even in societies that take the strongest precautions against tyrannical authority and put forth the greatest efforts “to maintain harmony and cohesion.”[209] Even though the pirate social structure was adaptable to the spontaneity of a life at sea, such a system could not handle serious sustained conflict.[210] As discussed above, if members of the crew were unhappy, they could split and overtake a new ship. Pirates could elect new captains, draw up new articles, and sail off to a more attractive place.[211] One has to keep in mind, however, that while the theory behind this solution does not seem difficult, it is essential that there be a ship available to those who want to depart from their former ship. Overall, in addition to keeping pirate crews from outgrowing a ship in size, “[t]he very process by which new crews were established helped to ensure a social uniformity and…a consciousness of kind among pirates.”[212]

C.     When Discipline and Punishment are Necessary

Sometimes, however, it was necessary to resolve internal conflict with discipline. Conveniently, the ship code also regulated the discipline of its members.[213] Unlike the strict naval discipline codes, pirate ship articles allowed pirates to disciplined themselves communally and often prescribed penalties as vague as “‘what Punishment the Captain and Majority of the Company shall think fit.’”[214] For example, Saint Mary’s pirates disciplined “desertion, mutiny, drunkenness, and refusal to board the enemy” with ‘“what punishment ye Capt. and ye Quarter-Master shall think fitt…’”[215] This practice is somewhat reminiscent of Imperial China’s laws of doing what ought not be done and being punished as the emperor shall think fit. The Saint Mary’s pirates’ treatment of discipline raises in important question. If a pirate life was voluntary, then why are desertion and mutiny punishable offenses? The above discussion suggested that pirate groups on the whole permitted pirates to split off into other groups when a ship experiences internal conflict. If those pirates already left the ship, then how could a company punish those individuals? Perhaps “desertion” here relates to pirates who ran away during a battle, and come back expecting to receive a share of the plunder.

Physical punishment such as whipping or “Moses’s Law” appears to have been a rare occurrence among pirates. One of the provisions in Captain John Phillips’s code mandated “thirty-none stripes on a man’s bare back” for not being careful with their pipes and candles.[216] This rule makes sense, however, because stray pipe tobacco and open candle flames could catch the entire ship on fire.[217] Pirate discipline “was generally tolerant of behavior that provoked punishment in other maritime occupations. Three major methods of discipline were employed, all conditioned by the fact that pirate ships were crowded; an average crew numbered near eighty on a 250-ton vessel.”[218] These three categories include pistol duels at shore, marooning, and execution.[219] On Saint Mary’s Island, however, “[p]hysical punishments were rare and imposed only by a majority vote.”[220]

D.     Pistol Duel

Keeping disputes on land, especially those which involve open fire, instead of on a ship makes a lot of sense. For example, one set of ship articles forbade fighting aboard the ship and required that quarrels be resolved on shore with sword and pistol.[221] This “punishment” required the two disagreeing individuals to duel with their pistols. [222] If both pirates missed their first shots, they had to continue the duel with their swords. [223] The “winner” was the first to draw the blood of his opponent. [224] Another provision taken from Bartholomew Roberts’ further explains:

None shall strike another aboard the ship, but every man’s quarrel shall be ended on shore by sword or pistol in this manner: at the word of command from the Quartermaster, each man being previously placed back to back, shall turn and fire immediately. If any man do not, the Quartermaster shall knock the piece out of his hand. If both miss their aim, they shall take to their cutlasses, and he that draws first blood shall be declared the victor.[225]

 

Again, it makes intuitive sense that pirates should want to keep dangerous internal conflicts off of the ship. [226] After all, the ship was their home and their livelihood. Perhaps the best explanation for keeping fighting off of ships was to keep the conflict among the individuals involved so that the crew would not take sides.[227]

E.     Marooning

Pirates also tried to preserve harmony by marooning pirates who caused trouble. [228] Here, the pirates would drop the troublemaker near an island and sail away, making that crew member “the ‘Governor of an Island,”’ where he was sure he would suffer hardships.[229] Pirate crews generally reserved this punishment for individuals who “were incorrigibly disruptive or who transgressed important rules.” [230] Examples of offenses that justified marooning included defrauding shipmates, taking more than his share of plunder, deserting or idling during battle, stealing, and keeping secrets from the rest of the company.[231] Likewise, Saint Mary’s pirates who stole “anything worth half a piece of eight or more (about $60) [were] marooned on an uninhabited island.”[232]

F.      Execution

Although it appears to have been a rarity, “[t]he ultimate method of maintaining order was execution.”[233] “This penalty was exacted for bringing on board ‘a Boy or a Woman’ or for meddling with a ‘prudent Woman’ on a prize ship, but was most commonly invoked to punish a captain who abused his authority.”[234] One could theorize as to why execution was so uncommon among pirate companies. Perhaps the ship crew would rather keep around an able-bodied man around, especially if he was good in battle. Another suggestion goes back to pirate unity. It would be a lot easier to feel loyalty to a group of people that is trying to make a life at sea more bearable than it would be to those you did not trust and that could kill you at any time. If the latter were the case, the pirates might as well have returned to the Royal Navy.

VII.           Pirates’ Dealings with Other Pirates

 

A.     Connections/Networks Among Pirate Crews

 

In accordance with principles of commonness of kind, it makes sense that groups of pirates, even those on different ships, should feel some sense of fraternity for each other. After all, they became pirates for many of the same reasons (i.e. to escape oppressive sea merchant or navy lives). One way for groups with a common cause to survive and succeed is for such groups to work together and develop connections. Connections among pirate crews have been charted. For example, a group of 3,600 active Anglo-American pirates from 1716-1726 were found to “fit into two main lines of genealogical descent.”[235]

Captain Benjamin Hornigold and the pirate rendezvous in the Bahamas stood at the origin of an intricate lineage that ended with the hanging of John Phillips’s crew in June 1724. The second line, spawned in the chance meeting of the lately mutinous crews of George Lowther and Edward Low in 1722, culminated in the executions of William Fly and his men in July 1726. It was primarily within and through this network that the social organization of the pirate ship took on its significance, transmitting and preserving customs and meanings and helping to structure and perpetuate the pirates’ social world.[236]

 

Pirates usually did not go after other pirate groups. As a result, pirates developed their consciousness of kind was shared on a grander scale.[237] For example, “[p]irates showed a recurrent willingness to join forces at sea and in port.”[238] Some crews “frequently invoked an unwritten code of hospitality to forge spontaneous alliances.”[239] Other pirate groups would even avenge each other when executed by outsiders.[240]

Pirates also used symbols to display and reinforce their unity.[241] Language was one such symbol.[242] Pirate language included a style of swearing and cursing that would arouse a hearty laugh out of the other pirates.[243] Flags were a more visible symbol of piracy.[244] The Jolly Roger is the most widely recognized flag.[245]

The Jolly Roger was described as a ‘black Ensign, in the Middle of which is a large white Skeleton with a Dart in one hand striking a bleeding Heart, and in the other an Hour Glass.’ Although there was considerable variation in particulars among these flags, there was also a general uniformity of chosen images. The flag’s background was black, adorned with white representational figures. The most common symbol was the human skull, or ‘death’s head,’ sometimes isolated but more frequently the most prominent feature of an entire skeleton. Other recurring items were a weapon – cutlass, sword, or dart – and an hour glass.[246]

 

Pirates designed their flags to frighten their victims. [247] Scholars, however, suggest a deeper meaning behind the symbols placed on the flag. These scholars suggest that the skeletal figures that represented death, violence, and limited time represented the pirates’ consciousness of themselves as having been victims themselves.[248]

Upon seeing the black flag of an approaching ship, pirate ships sometimes saluted each other with their cannons.[249] In addition to trying to prevent internal conflict on individual pirate ships, the pirates sustained a community among pirate groups by minimizing conflict among the various bands of pirates. [250] “Moreover, pirates self-righteously perceived their situation and the excesses of these powerful figures through a collectivistic ethos that had been forged in the struggle for survival,” and throughout their quest for vengeance and justice.[251] Seemingly romanticized depictions of pirates suggest that these men, “By walking ‘to the Gallows without a Tear,’ by calling themselves ‘Honest Men’ and ‘Gentlemen,’ and by speaking self-servingly but proudly of their ‘Conscience’ and ‘Honor,’ pirates flaunted their certitude.”[252]

B.     Fights, Wars, and Justice among Different Pirate Crews.

The above discussion of how well pirates get along with each other helps to account for the lack of literature describing conflict between different pirate groups. In fact, the Anglo-American crews did not attack each other.[253] Transnationally, “French, Dutch, Spanish, and Anglo-American pirates usually cooperated peaceably, only occasionally exchanging cannon fire.”[254] None of the pirate codes described in the literature seemed to mention anything about how pirates were supposed to deal with conflicts with other ships. Many societies that embrace a commonness of kind still have their conflicts. One could theorize, however, that if such conflicts did occur between different pirate groups, such conflicts would be dealt with much like on any pirate ship. However, it would be interesting to know what would happen if one ship’s code had much different provisions for dealing with such a situation than the other ship’s articles. This subject seems to parallel International law in the sense that like different countries with a conflict of laws, different pirate groups would have to deal with contrasting ship provisions in order to decide whose laws or articles controls. Again, like international law, this situation could be governed by norms and common principles of pirate law. An example taken from a fictional pirate move, Disney’s “Pirates of the Carribean” mentions “parley,” a device by which a prisoner can directly report to the Captain of the ship. In the movie, this was presented as a pirate code “norm” that all pirates know and implement. Interestingly, none of the literature or codes analyzed in this research project makes any mention of this pirate norm. Perhaps pirates also practiced an unspoken code as well as the written code.

VIII.        Pirates’ Dealings with Outsiders (Non-Pirates)

A.     Pirate Treatment of Outsiders and Treatment of Prisoners:

This is obviously the area that invokes the most negative images of pirates. Although pirates tend to have fair and just dealings within their own crews and social orders, most outsiders would find pirate treatment of outsiders, most often involving plundering and killing, as cruel and unjust. However, just as the Gypsy Rom felt that their dealings with outsiders were lawful and upright, pirates distributed justice according to their own legal ideals.

For example, merchant captains “faced great danger” when confronted with pirates.[255] When a pirate crew overtook a merchant ship, it would then distribute justice by “‘enquiring into the Manner of the Commander’s Behavior to their Men, and those, against whom Complaint was made’ were ‘whipp’d and pickled.’”[256] In accordance with the fact that most pirates came from the lowest social classes and that many had previously suffered abuses on merchant ships, pirates were particularly vengeful towards captains of higher birth,[257] as well as merchant captains.[258] Punishment of non-pirate captains according to their respective “crimes” reveals that pirates equated justice with revenge.[259]

Some pirates practices rather disgusting and sadistic tortures.[260] “When the captain of a Portuguese merchant-man dropped a large bag filled with gold moidores (coins) overboard, he had the man’s lips cut off and broiled in front of him and then forced the Portuguese mate to eat them before slaughtering the entire crew.”[261] Another form of torture practiced against captured merchant captains was sweating or “the Sweat.”[262] Here, a circle of twenty-five pirates, armed with swords, penknives, compasses, forks, and other pointed objects surrounded the victim.[263] Accompanied by a “merry Jig,” the victim “must run about for about ten Minutes, while each man runs his Instrument into his [the victim’s] Posteriors.”[264] Pirates also tortured prisoners for more practical reasons. For example, pirates wanted to find hidden valuables on the prisoner’s person. [265] One effective way to do this appears to have been by hauling prisoners “up in the rigging by block and tackle” and then dropping them onto the deck.” [266] After a merchant captain prisoners sustained tortures that didn’t result in death, they were most likely executed.[267]

Still, the pirates did show a little bit of mercy. For example, pirates would actually reward honest merchant ship captains who did not abuse their sailors.[268] The pirates’ motivation behind this seemingly unfitting practice was to show the merchants that “good fortunes befell good captains.”[269] Likewise, “[w]omen often received some protection; however, the cost might mean accepting the amorous advances of a particular pirate, and there are records of women suffering barbarous atrocities.”[270]

B.     Outsiders’ Treatment of Pirates

Outsiders’ were just as harsh in their mutual treatment of pirates. The Golden Age “caused a public outcry and an increasingly firm anti-pirate stance by regional governments, major national powers, and navies.”[271] Anti-piracy legislation increased all throughout the Atlantic, and anti-pirate naval patrols decreased pirate activities.[272] After capturing pirates, governments would subject pirates to trials and execution.[273] The obvious abuse of the pirate corpses following execution served as yet another deterrent.[274]

1.       Capture and Trial

As a result of animosity between pirates and royal officials, members of each group reciprocally offered bounties of “any price” for captured members of the other.[275] After capturing a pirate, most countries conducted a piracy trial under Maritime or Admiralty law,[276] and were subject to the states’ full penalties for property crimes.[277] “Pirates on trial were denied benefit of clergy, were ‘called Hostis Humani Generis, with whom neither Faith nor Oath’ were to be kept, and were regarded as ‘Brutes, and Beasts of Prey.’”[278] Unless the author assumes that some pirates were or had been priests, monks, or other forms of clergymen, denial of the benefit of clergy does not make sense.[279] The only plausible argument would be that any layman who could read or write stood a chance at passing a reading test to receive the benefit of clergy,[280] and that as above-mentioned, some pirates did in fact know how to read and write. Therefore, perhaps the author is only suggesting that the law did not afford a particular loophole to pirates that it did provide to laymen who had the rare fortune of becoming literate. Nevertheless, it is difficult to seriously imagine that a scruffy man with a scarf on his head, parrot, and peg leg would be successful in claiming the benefit of clergy.[281] In sum, as non-pirates generally detested pirates, those captured at the time of the Golden Age of Piracy faced high prospects of a public trial and an almost inevitable conviction.[282]

2.       Hanging and Execution: The Golden Age of Piracy Comes to an End

As such, pirates were sentenced to death.[283] After execution, governments hung the pirates’ bodies en masse, at the sites of busy ports, and then suspended the bodies of the most well-known pirates in cages until the corpses decomposed.[284] For example, the bodies of William Kidd, Jack Rackham, and Charles Vane underwent such treatment.[285] These extreme practices served as a deterrent by providing a “clear demonstration of the fate that would befall anyone who turned to crime on the sea.”[286] When executing pirates at sea, Admiralty law required that executioners hang the pirates on a wooden gallows above the low water mark so that their bodies would be washed by the tides for a day and a half.[287] Similar to the waterlogged bodies of these men, the combination of anti-piracy legislation and harsh punishment eventually caused the Golden Age of Piracy to be all washed up.[288]

 

IX.               Conclusion

 

The above interpretation of pirate life and legal structure is undoubtedly much different than in stories and books about pirates written in 19^th and 20^th centuries. Beyond the myths and romanticism surrounding common ideas about how pirates lived, this culture produced a striking system of egalitarianism, democracy and even pre-capitalism. Instead of merely searching for a life of adventure, pirates from the Golden Age could have been in search of something more.

Perhaps this system did develop out of a harsh system from which the pirates were escaping.

It is also possible that the ideals of egalitarianism and democracy were merely pirate excuses presented to non-pirates to justify roguish lives of crime and the brutal slaughter of non-pirate captains. To that effect, it would be interesting to find out whether present-day pirates[289] have retained any of the same norms or are compelled by similar forces. Either way, it is clear from the information extracted from existing pirate codes and even the more controversial writings on this topic that pirates took many features of self-governance into account and purposefully rather than inadvertently established their own legal system. As a result, the late 17^th through the early 18^th centuries comprised not just the Golden Age of Piracy, but a Golden Age of Democracy, Equality, and of course Rum.

“While we shared all by the rule of thumb, Yo ho ho and a bottle of rum”[290]

 

 

 

 

 

 

 

 

 

Bibliography

Pirates: Terror on the High Seas – from the Carribbean to the South China Seas (David Cordingly ed. 1996).

 

David Cordingly, Under the Black Flag: The Romance and the Reality of Life Among the Pirates (Harcourt Brace & Company 1995).

 

Daniel Defoe, A General History of the Pyrates (Manuel Schonhorn ed., Dover Publications 1972) (1724).

 

Philip Gosse, The History of Piracy (Gale Research Company 1976) (1934).

 

Angus Konstam, The History of Pirates (Lyons Press 1999).

 

Angus Konstam, Pirates 1660 – 1730 (Osprey Publishing Ltd. 2002).

 

Sara Lorimer, Booty: Girl Pirates on the High Seas (Chronicle Books 2002).

 

Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchang Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750, (Cambridge University Press 1987).

 

Jan Rogoziński, Honor Among Thieves: Captain Kidd, Henry Every, and the Pirate Democracy in the Indian Ocean, (Stackpole Books 2000).

 

Jan Rogoziński, Pirates! Brigands, Buccaneers, and Privateers in Fact, Fiction, and Legend, (Da Capo Press 1995).

 

Krzysztof Wilczynski, Injury Compensation, Pirates! Fact & Legend, at http://www.piratesinfo.com/detail/detail.php?article_id=53 (last visited Feb. 2, 2004).

 

Electronic Appendix

1681 Act for the Restraining and Punishing Privateers and Pirates:

http://www.ctrivermuseum.org/Privateers/prvt1681.htm

 

Custom of the Brothers of the Coast: (An example Pirate Code from around 1640)

                  http://pirates.ithilien.net/article-custombrothers.html

 

Pirate Jargon:

                  http://www.maritimepirates.com/jargon.html