Justice Under the Black Flag

Even Pirates Needed the Rule of [Their Own] Law

In the first Pirates of the Caribbean film, Captain Barbosa states that the pirates’ code “is more what you’d call ‘guidelines’ than actual rules.”[1] This was not true. The codes were taken seriously and strictly enforced. Despite their lawlessness, pirates during “the Golden Age of Piracy” in the Caribbean (1650 –1730) found that each floating community needed a measure of law and order, albeit a very different kind of social order than seen in the rest of the world.

TBJ Cover May 2017

Pirates’ unique form of governance operated according to the collective ownership of the ship and will of the crew. Thus constant voting took place.[2] It has been observed: “Nearly 100 years before the American and French Revolutions, experiments in egalitarian democracy were being carried out on the decks of hundreds of pirate ships.”[3]

Although called “the outcasts of all nations,” the pirates stalking the Spanish Main were predominately English or French, but their ranks included Dutch, Spanish, Scandinavian, Native American and African pirates.[4] A few were women, notably Anne Bonny and Mary Read.[5] Most had not been mutineers but had volunteered after the merchant ship on which they served was captured.[6] All pirates were considered equal, and there is no evidence of discrimination based on race or disability.[7]

These swashbucklers could be somewhat kindly. Writer and philosopher Elbert Hubbard wrote, “[P]irates were very charitable, and ever in their train were troops of sturdy beggars.”[8] And they were typically loyal and generous to each other.[9] There is also no indication of disputes among them when plunder was divided, and there is scant evidence of stealing from one another.[10] Some credit for this order and fairness must be given to their revered codes.

The written pirate codes were remarkably similar.[11] This is explained by how crews were formed. When a ship became too crowded because of new recruits or when conflict developed, such as a dispute over who should be elected captain, the crew would split when a suitable second ship was taken. The new crew would then swiftly meet “in council” or as a “Council of War,” with plenty to drink on hand, and prepare its own code.[12] This was based upon the code of the original crew. Therefore, legal and cultural continuity was fostered.[13] All new recruits took an oath on a Bible or an ax to uphold the code.[14]

 

Pirates Anne Bonny and Mary ReadPirates Anne Bonny (c. 1700 – c. 1782) and Mary Read (c.1690 – 1721), are two of the most renowned
female pirates of all time and the only women known to have been convicted of piracy during the
Golden Age of Piracy. All pirate art, public domain.

 

Separation of Powers

The captain was usually allotted two shares of any plunder and had few other privileges.[15] He was elected and removed by majority vote by a show of hands under the code; hence there was no need for mutinies on pirate ships.[16] Both Captains Henry Morgan and William Kidd were voted out by their crews.[17] Therefore, the captain was usually not all-powerful, except during battle or while “chasing, or being chased” when he was in absolute command and could summarily execute crew members for disobedience or cowardice.[18] Moreover, crews determined each voyage’s destination and what ships to take or Spanish colonial town to sack.[19]

Crews detested authoritarianism, from which many had escaped when deserting the brutal discipline imposed on board legitimate merchant and naval ships.[20] The punishment for abusive captains was death.[21] Captains were most often removed for incompetence, cowardice or failure to find prey, but one was voted out for being too “Gentleman-like.”[22] Edward Teach, better known as Blackbeard, was almost removed when his ship ran out of rum.[23] One crew changed captains 13 times during one voyage.[24]

Clever captains held raucous island parties with plenty of rum and women to maintain popularity.[25]

Edward Teach, a.k.a. "Blackbeard"Capt. Bartholomew Roberts
Edward Teach, a.k.a., “Blackbeard” (c. 1680 – Nov. 22, 1718), was a notorious English pirate who operated in the West Indies and the eastern coast of Britain’s North American coloniesCapt. Bartholomew Roberts (May 17, 1682 – Feb. 10, 1722) was the most successful pirate of the Golden Age of Piracy.

Pirates, who disliked the absolute power of merchant and naval captains, believed in separation of powers and sought to counterbalance the captain’s power with the only other elected officer: the quartermaster.[26] In daily pirate life, he was of far greater importance than the captain and the most trusted man of the crew.[27] He has been called “the ship’s magistrate.”[28]

The quartermaster was “part tribune, part mediator, part treasurer, and part keeper of the peace.”[29] He enforced the code. By code or custom, he summarily punished minor offences; mediated disputes; oversaw sanctioned fights conducted on shore with “sword and pistol” when mediation failed (the winner was commonly the combatant who drew first blood); administered floggings approved by the crew; took the ship’s helm in battle; took control of captured treasure; and oversaw and fairly distributed food, drink and booty according to the code.[30] When a crew split, he was frequently elected captain of the departing pirates.[31]

The ship’s physician was precluded from voting because his education made him a gentleman.[32] However, he was valued since doctors were in short supply. His normal duties were to combat syphilis, malaria and yellow fever, for which there were no cures, and perform amputations. On ships without a physician, amputations were performed by the carpenter.[33]

Pirates sacking a townPirate attack
Pirates sacking a town.Captain Thomas Tew’s pirate ship
attacking a merchant vessel.

Pirate Codes

The historical roots of the pirate codes were the articles agreed on by English privateers, called “buccaneers,” who were granted “letters of marque” by England authorizing attacks on Spanish shipping during wartime.[34] The buccaneers’ strict code was called the “Custom of the Coast.”[35]

The extensive pirate codes that followed governed many aspects of life: care of weapons; care with fire around the explosives; distribution of provisions and treasure; power of officers; requirement that quarter be granted to the surrendered; crimes, trials and punishments; and guarantees of equality and certain individual rights. One code awarded the best pistols seized to the man to first spot a prize ship.[36] Rewards were also set for bravery and marksmanship.[37] The most famous and complete of the surviving codes is that of Captain Bartholomew Roberts.[38]

One of the most novel aspects was the codes’ system of workers’ compensation for those injured while pirating. A typical code allotted payment of 600 pieces of eight for the loss of a right arm, 500 for the left arm, 500 for the right leg, 400 for the left leg, and 100 for the loss of an eye or finger. According to the code, only after the payment of the set sums for injuries was plunder divided evenly among the crew, whatever its size.[39] Therefore, the code reflected great concern for their disabled. Their compensation came first.

Some codes outlawed hiding plunder, gambling, cheating and stealing (from one another), unauthorized fighting and bringing women on board. Ships’ musicians were allowed to rest on the Sabbath.[40] Codes also provided for the decent treatment of women captives. This was not out of chivalry. It was just good business. A targeted ship was more likely to surrender peaceably if it was believed that its female passengers would not be injured.[41] In fact, pirates rarely harmed any prisoners and always tried to avoid battle, for their goal was profit not fighting. Yet if there was resistance, they were merciless.[42]

The codes, however, did not solve all problems. Drunkenness was rampant, and this could lead to brawls that engulfed the whole ship.[43] Pirate Captain Charles Swan complained that he was unable to capture a prize because his entire crew was drunk.[44] Captain Sam Bellamy bemoaned that his ship ran aground due to the crew’s drunkenness.[45] Intoxication was so common on pirate ships that sobriety could bring a man under suspicion of plotting against the captain or crew.[46] Bartholomew Roberts’s code did require that any drinking after 8 p.m. had to be done “on the open deck.”[47]

Another problem unaddressed by the codes was maintenance. Pirate ships were habitually in poor condition. So, when a vessel grew unseaworthy, capturing a new one became the priority over acquiring treasure.[48]

Pirate Trials

Pirates loved trials. They loved them so much that when there were no real trials to conduct, they would hold mock trials. They would use a tarp for the judge’s robe and select jurors, a defense attorney, a prosecutor and the accused feigning “sour faces.”[49] It was a way to make fun of civilized society.[50] Pirates would get so engrossed by a mock trial they could forget that it was a game. For instance, one mock defendant got so upset at being found guilty that “he threw a hand grenade at the jury and with his cutlass hacked off the arm of the prosecutor.”[51]

Real pirate trials could be just as dramatic as the mock. In one case, a pirate named Glasby was one of three on trial below deck for the capital offense of desertion. He was vigorously represented by a shipmate named Valentine Ashplant. Nevertheless, the evidence was overwhelming against the defendants. In closing argument, Ashplant rose and said: “Glasby is an honest fellow, notwithstanding this misfortune, and I love him, devil damn me if I don’t. I hope he will live and repent of what he has done; but damn me, if he must die, I will die along with him!” Ashplant then drew a pair of pistols and pointed them at the jury. The pirate jury quickly acquitted Glasby but found the other two guilty, who were immediately executed by firing squad.[52] Accordingly, history once again confirms that it is better to be represented at trial than not.

Pirate Party
A pirate party.

Pirate Punishments

Firing squad was an infrequent mode of punishment, but when ordered, the convicted got to choose his executioners.[53] Hanging was also extremely rare. These were the popular punishments of the civilized world. More commonplace pirate penalties were as follows:

Flogging was unpopular, for it was what they escaped as legitimate sailors. It was inflicted by the quartermaster for minor misdeeds.[54] But there was an occasion where each member of a crew got to deliver a stroke of the lash.[55] Some codes provided that a pirate found guilty of stealing from another was to have his ears and nose cut off.[56]

When convicted of murdering a fellow pirate, the prisoner and the corpse were tied together, weights attached, and both thrown overboard. This mode of execution was invented by the British Navy.[57]

“Keelhauling” also originated with the British fleet. An oily rag was tied over the nose and mouth of the prisoner to prevent drowning. He was then tied and pulled by ropes under the ship from one side to the other three times. Being dragged across the barnacles on the hull would scrape off the skin from the prisoner’s back and was usually fatal.[58]

“Sweating a man to death” was more regularly reserved for particularly disliked captives (such as the captain of a captured ship found to have been cruel to his crew),[59] but it was sometimes applied to erring pirates. He would be required to run around the deck or rigging until he fainted or dropped dead. Sometimes the crew would prick the captive with knives as he ran past.[60]

Walking the plank"Walking the plank” was not very common …
pirates would just throw prisoners overboard.

Despite its popularity in pirate novels and movies, “walking the plank” was not very common but was a preferred method of Captains Sted Bonnet and George Wood. Instead of using a plank, more often pirates would just throw prisoners overboard to feed them to the sharks or simply to drown. Most pirates could not swim.[61]

“Marooning” was the favored punishment for the despised crimes of theft, desertion and treason.[62] There would have to be a majority vote of the entire crew to inflict this harsh penalty. The convicted was placed on a desert island, sometimes completely naked, with a bottle of water and a pistol with enough shot and powder to commit suicide.[63] Often these tiny islands were underwater at high tide.[64] To add insult to injury, the pirate ship would sometimes sail back past the island days later to give the victim false hope of rescue. In one case, the ship returned, but only to tease the marooned, burn his hut and eat what little food he had found.[65] There was small hope of rescue, and death would come by starvation, dehydration, drowning or self-infliction.[66]

The irony of these lawbreakers’ law was that the “codes are an interesting example of man trying to contain himself against his worst excesses, while being free to indulge in them at will.”[67] Nonetheless, pirate law demonstrates that no matter the human condition, mankind must have law. As Benjamin Franklin said, “Where there’s no law, there’s no bread.”[68] And there’s no rum.

Notes

  1. Pirates of the Caribbean: The Curse of the Black Pearl (Walt Disney Pictures 2003).
  2. Frank Sherry, Raiders and Rebels: The Golden Age of Piracy 122-23 (1986).
  3. John Reeve Carpenter, Pirates: Scourge of the Seas 58 (2006).
  4. Marcus Rediker, Villains of All Nations: Atlantic Pirates in the Golden Age 63 (2004).
  5. Hamilton Cochran, Pirates of the Spanish Main 120-31 (1961).
  6. Rediker at 79.
  7. Id. at 74.
  8. Elbert Hubbard, Notebook 16 (1927).
  9. Alexander O. Exquemelin, The Buccaneers of America 74 (1969).
  10. Patrick Pringle, Jolly Roger: The Story of the Great Age of Piracy 119 (2001).
  11. Rediker at 65.
  12. Id. at 77.
  13. Id. at 79-80.
  14. Sherry at 125.
  15. Douglas Botting, The Pirates 47 (1978).
  16. Pringle at 107.
  17. David Pickering, Pirates 167 (2006).
  18. See Sherry at 12; David Cordingly, Under the Black Flag 98 (1995).
  19. Cordingly at 96.
  20. See Carpenter at 58.
  21. Rediker at 76.
  22. Id. at 65.
  23. Angus Konstam, Pirates: Terror on the High Seas 55 (2001).
  24. Pringle at 107.
  25. Sherry at 134.
  26. See Pringle at 109; Konstam at 53; Rediker at 66.
  27. Rediker at 67.
  28. Botting at 50.
  29. Id. at 68.
  30. Sherry at 124-5.
  31. Rediker at 68.
  32. Id. at 79.
  33. Sherry at 129.
  34. Id. at 64-65.
  35. Cochran at 41.
  36. Nigel Cawthorne, A History of Pirates: Blood and Thunder on the High Seas 147-48 (2004).
  37. Cochran at 41.
  38. See Daniel Defoe, A General History of the Pyrates 211-12 (1999).
  39. See Cordingly at 97.
  40. See id. at 98-100; Cawthorne at 46.
  41. Pringle at 118.
  42. Id. at 113.
  43. Rediker at 73.
  44. Pringle at 120.
  45. Rediker at 73.
  46. Id. at 71.
  47. Defoe at 211.
  48. Sherry at 131.
  49. Id. at 139.
  50. Id. at 141.
  51. Botting at 47.
  52. Id. at 54; Cawthorne at 153.
  53. Rediker at 76.
  54. Cawthorne at 148.
  55. Pickering at 171.
  56. Cochran at 41.
  57. Pringle at 118; Sherry 127.
  58. Cawthorne at 148; Carpenter at 62.
  59. Pringle at 113-14.
  60. Carpenter at 62.
  61. Id. at 62-63; See Pringle at 112.
  62. Pickering at 172-73; Sherry at 127.
  63. See id., Botting at 54; Sherry at 127; Cawthorne at 148.
  64. Sherry at 128.
  65. Botting at 55.
  66. Pickering at 172.
  67. Konstam at 55.
  68. Benjamin Franklin, Poor Richard’s Almanac (1775) in 5 Papers of Benjamin Franklin 398 (Leonard W. Labaree ed. 1962).

Russell Fowler Aye, Aye, Mateys! Be it known henceforth that RUSSELL FOWLER be director 'o litigation 'n advocacy at Legal Aid 'o East Tennessee (LAET) 'n since 1999 has be adjunct professor 'o political science at th' University 'o Tennessee at Chattanooga. He served as th' law clerk to Chancellor C. Neal Small in Memphis 'n earned his law degree at th' University 'o Memphis in 1987. Fowler has many publications on law 'n legal history, includin' many in this here Journal. Yo ho ho!

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