Legal spaces of empire: Piracy and the origins of ocean regionalism

Comparative Studies in Society and History

Volumn 47, Issue 4, 2005, Pages 700-724

  Benton, Lauren ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CARTOGRAPHY; MAP; OCEAN;

EASTERN HEMISPHERE; EURASIA; EUROPE; PORTUGAL; SOUTHERN EUROPE; WORLD;

EID: 27144540196     PISSN: 00104175     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0010417505000320     Document Type: Review

References (94)

1. Quoted in Armando Cortesão and Avelino Teixeira da Mota, "General Introduction," in Portugaliae Monumenta Cartographica (Lisbon: N.p., 1960), Vol. I, xvii-xlii, quote p. xvii.
2. This narrative is presented piecemeal in works spanning the history of cartography, historical geography, and colonial studies. In early colonial history, one result has been a consistent emphasis on the erasure of the spatial understandings of non-Europeans; see, for example, J. B. Harley, "New England Cartography and the Native Americans," in The New Nature of Maps: Essays in the History of Cartography, Paul Laxton, ed. (Baltimore: Johns Hopkins University Press, 2003), 169-96.
3. In the construction of high colonialism, mapping is seen to function as a reinforcement of social control; for example, see Matthew H. Edney, Mapping an Empire: The Geographical Construction of British India, 1765-1843 (Chicago: University of Chicago Press, 1999).
4. The general argument about an association between the transition to Cartesian representations of space and European empire is in Robert David Sack, Human Territoriality: Its Theory and History (Cambridge and New York: Cambridge University Press, 1986), ch. 2.
5. See e.g., Martin Lewis and Karen Wigen, The Myth of Continents: A Critique of Metageography (Berkeley: University of California Press, 1997).
6. An interesting case study of regional formation that emphasizes the geographic imagination of a region's inhabitants rather than the discourse of outsiders is Katherine Morrissey, Mental Territories: Mapping the Inland Empire (Ithaca, N.Y.: Cornell University Press, 1997).
7. This is one of the arguments in Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge and New York: Cambridge University Press, 2002).
8. On this point, see Philip Steinberg, The Social Construction of the Ocean (Cambridge: Cambridge University Press, 2001), 75 -86.
9. Jerry Brotton traces the difficulties of enforcing the Treaty of Tordesillas given the state of geographic knowledge in "Terrestrial Globalism: Mapping the Globe in Early Modern Europe," in Denis Cosgrove, ed., Mappings (New York: Reaktion Books, 1999), 90-108.
10. For an approach that takes Portuguese sovereignty claims at face value, see Patricia Seed, "This Island's Mine," in Peter Hulme and William H. Sherman, eds., The Tempest and Its Travels (Philadelphia: University of Pennsylvania Press, 2000).
11. An overview of imperial rivalries influencing early maritime politics is provided by Elizabeth Mancke, "Empire and State," in David Armitage and Michael Braddick, eds., The British Atlantic World, 1500-1800 (New York: Palgrave MacMillan, 2002), 175-95;
12. and E. Mancke, "Negotiating an Empire: Britain and Its Overseas Peripheries c. 1550-1750," in Christine Daniels and Michael V. Kennedy, eds., Negotiated Empires: Centers and Peripheries in the Americas, 1500-1820 (London: Routledge, 2002), 235-65.
13. On the legacy of Ptolemy for cartographic representations of ocean space by Europeans, see Martin W. Lewis, "Dividing the Ocean Sea," Geographical Review 89, 2, "Oceans Connect" (Apr. 1999), 188-214.
14. Portuguese shipwreck rates at or near the Cape were appreciably reduced in the second half of the sixteenth century, though the area around Mozambique continued to be considered a dangerous coast. The Dutch, in the seventeenth century, largely avoided these dangers by sailing east to Batavia.
15. Martin W. Lewis, "Dividing the Ocean Sea."
16. Peter T. Bradley, The Lure of Peru: Maritime Intrusion into the South Sea, 1598-1701 (New York: St. Martin's Press, 1989).
17. See the work of Alison Games on English colonization schemes for Madagascar.
18. Steinberg, The Social Construction of the Ocean, 41-52.
19. Thus Prakash notes that when the king of the Maldive islands appealed to Aurangzeb to prevent English and Dutch shipping from reaching the islands, he was told that the emperor could do nothing because he was "master only of land and not of the sea." Om Prakash, "European Corporate Enterprises and the Politics of Trade in India, 1600-1800," in Rudrangshu Mukherjee and Lakshmi Subramanian, eds., Politics and Trade in the Indian Ocean World: Essays in Honour of Ashin Das Gupta (Delhi: Oxford University Press, 1998), 165-82, quote p. 174.
20. For a strong argument that the international law of the Indian Ocean not only predated that of Europe but was the model for certain aspects of seventeenth-century international law, see R. P. Anand, Origin and Development of the Law of the Sea (The Hague: Martinus Nijhoff, 1983);
21. and for a more measured approach that provides some support for this view, see C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th centuries) (Oxford: Clarendon Press, 1967).
22. For a broader discussion of the influence of this model, see Chapter 2 of Benton, Law and Colonial Cultures;
23. and Lauren Benton, "The Legal Regime of the South Atlantic World: Jurisdictional Complexity as Institutional Order," Journal of World History 11, 1 (2000):27-56.
24. On shipboard discipline, see especially Marcus Rediker, Between the Devil and the Deep-Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge and New York: Cambridge University Press, 1987).
25. See also Pablo E. Pérez-Mallaína, Spain's Men of the Sea: Daily Life on the Indies Fleets in the Sixteenth Century (Baltimore and London: The Johns Hopkins University Press, 1998).
26. See for example Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon, 2000).
27. treatment of piracy that notes its close relation with claims to the monopoly of trade routes is Anne Pérotin-Dumon, "The Pirate and the Emperor: Power and Law on the Seas, 1450-1850," in James D. Tracy, ed., The Political Economy of Merchant Empires (Cambridge and New York: Cambridge University Press, 1991), 196-227.
28. The discussion of the two approaches follows Alfred P. Rubin, The Law of Piracy (Newport, Rhode Island: The Naval War College Press, 1988).
29. See Rubin, The Law of Piracy, 23.
30. Grotius' treatise in defense of free navigation of the seas, Mare Liberum (The Free Sea) was written in response to a request by the Dutch East India Company (VOC) to justify its seizure of a Portuguese ship near Malacca in 1603. Grotius argued forcefully that the unlawful claims of the Portuguese created a condition of just war that legitimated the taking by a forerunner of the VOC. The argument rested in part on Grotius' view that the sea could not be occupied and therefore could be held only in common. But Grotius' view of the sea as a "state of nature" in which both sovereign agents and private actors were guided by natural law coexisted with the more familiar argument that the VOC forerunner was indeed an agent of the Dutch state. (In point of fact, Grotius claimed that the ship captain was acting at the behest of the King of Johore, whose sovereignty Grotius upheld and whose right to action in this case derived from his alliance with the Dutch.) On the classical foundations for Grotius' views on natural law and its implications, see Benjamin Straumann, "'Ancient Caesarian Lawyers'" in a State of Nature: Roman Tradition and Natural Rights in Hugo Grotius' De iure praedae, Institute for International Law and Justice, New York University Law School, unpub. MS, 2005. On the context of Grotius' early writings,
31. see "Introduction," in David Armitage, ed., The Free Sea (Indianapolis: Liberty Fund, Inc., 2004), xi-xx.
32. Quoted in Rubin, The Law of Piracy, 30. Rubin suggests that Grotius was reversing his earlier position developed in Mare Liberum that a sovereign could not effectively occupy part of the sea. Yet in the earlier work, Grotius already noted that Roman law recognized not ownership of the sea but the right of "protection and jurisdiction ... which also other free nations have in the sea." (Grotius, The Free Sea, in David Armitage, ed., 31).
33. James Muldoon, "Who Owns the Sea," paper presented at the conference "Sea Changes: Historicizing the Oceans," Universitat Greifswald, July 2000.
34. James Muldoon, "Christendom, the Americas, and World Order," paper presented at the conference "The History of the Atlantic System 1580-1830," 18.
35. Steele describes the shifting definitions and flexible interpretation of treaty enforcement beyond the line. See Ian Steele, The English Atlantic, 1675-1740: An Exploration of Communication and Community (New York: Oxford University Press, 1986).
36. For an argument about the lasting symbolic importance of the lines, see Eliga H. Gould, "Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, Circa 1772," William and Mary Quarterly 60, 3 (2003), 471-510.
37. For an overview of long and short waves of early modern piracy and an analysis of the impact of cycles of warfare, see David Starkey, "Pirates and Markets," in C. R. Pennell, ed., Bandits at Sea: A Pirates Reader (New York: New York University Press, 2001), 107-24.
38. The political context of William Kidd's voyage and trial is analyzed thoroughly in Robert C. Ritchie, Captain Kidd and the War against the Pirates (Cambridge and London: Harvard University Press, 1986).
39. I rely throughout this section both on Ritchie's excellent account and on the documents from the Kidd case contained in Franklin Jameson, ed., Privateering and Piracy in the Colonial Period, Illustrative Documents (New York, Augustus M. Kelley, 1970).
40. "Narrative of William Kidd. July 7, 1699" (PRO, CO 5:860, no. 64 XXV), printed in Privateering and Piracy, 205-13, quote p. 208.
41. "Memorial of Duncan Campbell" (PRO CO 5:860, no. 64 IV), printed in Privateering and Piracy, 202-5, quote p. 203. Kidd was already telling this story when he held discussions with Governor Bellomont's envoy off the coast of Rhode Island to try to arrange a safe return.
42. The definition of which line was meant when Europeans invoked the phrase "no peace beyond the line" underwent change from the more precise delineations of fifteenth- and early sixteenth-century treaties, to the simple designation of the Tropic of Cancer, and to the more informal reference to the equator as the dividing line. As Ian Steele has shown, these differences paralleled emerging definitions of different zones of peace. Treaties routinely came to recognize phases in treaty enforcement in several zones of increasing distance in the wider world. However, as Steele also notes, these zones were not precisely bounded and, for all intents and purposes, North America was included in the southern Atlantic zone. This geography of diplomacy provided yet another dimension to the legal structuring of piracy since the interpretation of these boundaries had important and concrete implications for the characterization of seizures as legal or illegal. See Steele, The English Atlantic, 1675-1740.
43. On the generalized perception of Europe as law-bound and civilized, and the extra-European world as lawless and barbarous, see Gould, "Zones of Law, Zones of Violence."
44. The Grand Pyrate, or, The Life and Death of Capt. George Cusack, the Great Sea-Robber: With an Accompt of all His Notorious Robberies Both at Sea and Land: Together With His Tryal, Condemnation, and Execution / Taken by an Impartial Hand (London: Printed for Jonathan Edwin, 1676) [microform].
45. This is from Dampier, quoted in Peter T. Bradley, The Lure of Peru: Maritime Intrusion into the South Sea, 1598-1701 (New York: St. Martin's Press, 1989), 136.
46. Ignacio Gallup-Diaz, Door of the Seas and Key to the Universe: Indian Politics and Imperial Rivalry in the Darien, 1640-1750 (New York: Columbia University Press, 2004).
47. Several days before Mansfield took Santa Catalina, the Jamaican Governor Modyford had actually declared war on the Spaniards - though Mansfield did not know this until later - and the declaration made his expedition against the Spaniards legitimate.
48. Peter Earle, The Sack of Panama: Sir Henry Morgan's Adventures on the Spanish Main (New York: Viking, 1981), 60-61.
49. This defense continued to be common - and sometimes effective - at pirate trials into the eighteenth century. The project of sorting out unrepentant offenders from forced participants came to be a routine function of court proceedings and invited testimony from pirates about how they came to serve, whether they participated willingly, and even whether they fought with gusto or appeared unhappy with their lot. In the trial of 168 men from Bartholomew Roberts' crew at Cape Coast Castle in 1722, seventy-seven were acquitted on grounds that they were unwilling or indifferent pirates, while thirty-nine were punished and fifty-two were hanged. See Peter Earle, The Pirate Wars (London: Methuen, 2003), 207.
50. "Deposition of Benjamin Franks. October 20, 1697" (PRO CO 323:2, no. 124) printed in Privateering and Piracy, 190-95, quote p. 194.
51. "Examination of Edward Buckmaster. June 6, 1699" (Oxford Bodleian Library, Rawlinson MSS, A. 272, fol. 48; also PRO, CO 5:1042, no. 40 XL), printed in Privateering and Piracy, 197-200, quote p. 199.
52. Quoted in Anton Gill, The Devil's Mariner: A Life of William Dampier Pirate and Explorer, 1651-1715 (London: Michael Joseph, 1997), 165.
53. The Devil's Mariner, 144
54. Unfortunately for May and the other defendants, the King's witnesses included crewmembers who testified that all had been free to leave the captured ship; all six defendants were hanged. The Tryals of Joseph Dawson, Edward Forseith, William May, William Bishop, James Lewis and John Sparkes for Several Piracies and Robberies by Them Committeed in the Company of Every The Grand Pirate, Near the Coasts of the East-Indies, and Several Other Places on the Seas: Giving an Account of Their Villainous Robberies and Barbarities: At the Admiralty Sessions, Begun at the Old Baily on the 29th of October 1696, and Ended on the 6th of November (London, 1696), 23.
55. On early Portuguese-Indian interactions, see Michael N. Pearson, Port Cities and Intruders; The Swahili Coast, India, and Portugal in the Early Modern Era (Baltimore: Johns Hopkins University Press, 2003).
56. Om Prakash, "European Corporate Enterprises," 174.
57. Kenneth McPherson, "Trade and Traders in the Bay of Bengal: Fifteenth to Nineteenth Centuries," in Politics and Trade in the Indian Ocean, 183-209, quote p. 196.
58. India Office Records (IOR), E/3/53, 6404.
59. IOR, E/3/52, 6205.
60. IOR, E/3/53, 6404.
61. On the changing fortunes of the East India Company during this period, see Ritchie, Captain Kidd, 128-131.
62. IOR, E/3/52, 6198.
63. In Spain, for example, a separate jurisdiction for maritime law had its origins in the fusion of Mediterranean and Atlantic traditions of self-regulating maritime merchant communities and in the proliferation, after the end of the fifteenth century, of consulados that brought commercial disputes under the ambit of maritime judges and created a different procedural regime emphasizing arbitration. While the impulse to regulate new long-distance trade at first gave rise to a greater prominence for Spanish maritime law, this trend was followed by its gradual merging with other jurisdictions, mainly an undifferentiated merchant law. As in England, imperial expansion unsettled the system of regulating privateering and adjudicating prize cases in local specialized forums with appeals to the Consejo de Guerra. In 1674, the crown made it possible for the first time for prizes to be taken to the nearest audiencia, or high court, and for pirates to be tried by local justice. The earlier system was flawed, from the crown's perspective, in that it provided local communities with the incentive and means of using prize cases as a cover for contraband trade. "Prizes" could be brought to port, condemned, and distributed as a way of avoiding duties. One measure of the importance of maritime law in the early Spanish empire is that maritime laws made up by far the largest category of laws listed in the Recopilación de las leyes de los Reynos de los Indias (1680). See Patrick Werner, "El Régimen legal de actividad marítima del imperio Hispanico: El libro nueve de la Recopilación," The Nicaraguan Academic Journal 3, 2 (2000), 39-62.
64. On the consulados, see Marta Milagros del Vas Mingo, Los Consulados en el tráfico indiano (Fundación Histórica Tavera, 2000);
65. on corsairs, Enrique Otero Lana, Los Corsarios Españoles durante la decadencia de los Austrias: El corso español del Atlántico peninsular en el siglo XVII (1621-1697) (Madrid: Editorial Naval, 1992).
66. This process is traced in M. J. Pritchard and D.E.C. Yale, Hale and Fleetwood on Admiralty Jurisdiction (London: Selden Society, 1993).
67. This argument was put forward most forcefully by Richard Zouch, a prominent civilian and judge of the High Court of Admiralty from 1641 to 1649. He wrote the eight-volume Jurisdiction of the Courts, which included as its Chapter 22 The Jurisdiction of the Admiralty of England Asserted, against Sr. Edward Coke's Articuli Admiralitatis (London: Printed for Francis Tyton and Thomas Dring, 1663).
68. Joanne Mathiesen, "Some Problems of Admiralty Jurisdiction in the 17th Century," The American Journal of Legal History 2 (1958):215-36, quote pp. 223-24.
69. The most outspoken and effective opponent of preserving or extending civil law jurisdiction was Sir Edward Coke, who defended a narrow definition of admiralty jurisdiction, particularly on the grounds that the court did not use juries. See Mathiesen, "Some Problems of Admiralty Jurisdiction" and Brian P. Levack, The Civil Lawyers in England, 1603-1641: A Political Study (Oxford: Clarendon, 1973).
70. On the origins of various admiralty jurisdictions in the Atlantic, see Helen J. Crump, Colonial Admiralty Jurisdiction in the Seventeenth Century (London: Lonmans, Green and Co., 1931).
71. For example, Newcastle Lieutenant-Govemor Usher complained in 1696 that he had issued a letter of marque to a privateer named Captain Mould, who took his prizes into Boston rather than returning to Newcastle and his sponsors. Crump, Colonial Admiralty Jurisdiction, 127.
72. The 1673 Order of Council required the creation of special commissions in the colonies. It took another eight years for Jamaica to establish a conforming statute enabling royal officials to oversee the trial of pirates. But this hardly ended the legal difficulties. Two years later, in 1683, a ruling by the Lords of Trade and Plantations effectively nullified the Jamaican statute by insisting that colonial admiralty courts had no jurisdiction to try capital cases but only property disputes. On this "muddled legal situation" see Ritchie, Captain Kidd, 143.
73. Quoted in Crump, Colonial Admiralty Jurisdiction, 167.
74. IOR, L/L/6/1, case 14. The Legal Advisor's Department wrote: "...[U]pon Inquiry we find that there is no Court of Admiralty in any part of the East Indies belonging to the East India Company, which we are humbly of opinion is necessary [and] should be erected before any Letters of Marque and Reprisal can be granted."
75. William May, one of Avery's men who was tried for piracy, apparently benefited, if only temporarily, from the relative weakness of Indian Ocean forums. May was left at Joanne in the Indian Ocean; he was sick and on shore trying to recover when Avery's ship sailed off to avoid three incoming English ships. Fearing "to be left to the mercy of these Negroes," May agreed to be taken to a court in Bombay where he would be tried for piracy. But Bombay was a long way off. Either May changed his mind or the leader of the small convoy could not be bothered to chase and deliver a solitary pirate; the ships sailed on without him. It was here that May met up with an African who had lived at Bethnal-Green "and spoke English very well," a minor but interesting encounter in the annals of early modern globalization (The Tryals of Joseph Dawson, 23).
76. This is the premise of the account of the campaign against the pirates in Marcus Rediker, Villains of All Nations (Boston: Beacon Press, 2004), ch. 1.
77. As Rediker acknowledges, it was mainly during the brief period from 1722 to 1726 that pirates gave up on legitimacy and "became more desperate and more violent and killed more of their captives." (Villains of All Nations, 37). Yet, even as the campaign against them turned brutal, some legal posturing continued. Men with the pirate Thomas Anstis waited on the coast of Cuba hoping to receive a pardon from King George II (ibid., 155).
78. Captain Charles Johnson, A General History of the Robberies and Murders of the Most Notorious Pirates (New York: Routledge, 2000 [1726]), 55-77.
79. See Robert E. Lee, Blackbeard the Pirate: A Reappraisal of His Life and Times (Winston-Salem, N.C.: John F. Blair, 2002 [1974]).
80. The figure includes pirate captains hanged by the English, Dutch, French, Portuguese, and Spanish. Peter Earle, The Pirate Wars, 206.
81. This is of course the central assertion of Linebaugh and Rediker in The Many-Headed Hydra. Their chapter on piracy notes that both extreme cases of "hydrarchy," or the creation of a parallel social order under pirate rule, and the virulent suppression of piracy by the English crown were peculiar to the 1720s, but elsewhere the authors suggest that pirates' loyalty to custom was relatively constant, and linked in unspecified ways to proto-revolutionary sentiments around the Atlantic.
82. Janice Thomson, Mercenaries, Pirates, and Sovereigns: State Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994).
83. A developing understanding of ocean basins as geographical entities did not entirely displace an alternative vision of ocean arcs connecting through sea passages until well into the nineteenth century, while later designations (the Atlantic, Indian, and Pacific Oceans) would also long coexist with a more varied nomenclature. Martin W. Lewis, "Dividing the Ocean Sea."
84. This is true for even the most sophisticated treatments of the history of the field. See Martti Koskoniemmi, The Gentle Civilizer of Nations (Cambridge and New York: Cambridge University Press, 1997). Anghie argues for the influence of colonial history on international law but concedes that this influence was limited and controlled largely by European debates, not by the messy legal politics of empire.
85. Antony Anghie, "Francisco de Vitoria and the Colonial Origins of International Law," Social and Legal Studies 5 (1996), 321-36;
86. and Antony Anghie, "Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law" Harvard International Law Journal 40 (1999), 1-80.
87. On Eurocentrism in world history, see the essays in Benedikt Stuchtey and Eckhardt Fuchs, Writing World History 1800-2000 (Oxford: Oxford University Press, 2003);
88. especially Arif Dirlik, "Confounding Metaphors, Inventions of the World: What is World History For?" on pp. 91-134.
89. Much has been made of the "lines of amity" of the first half of the seventeenth century that marked the division between a zone of negotiated peace and a zone of war. Gould emphasizes the importance of demarcating two Atlantic legal zones, a division he views as sharpening in the second half of the eighteenth century. Eliga H. Gould, "Zones of Law, Zones of Violence." Carl Schmitt argued that this separation was an essential element of the emerging European-centered international order; the bracketing of war in the extra-European zone, he contended, formed a precondition for order inside Europe.
90. Carl Schmitt, Nomos of the Earth in the International Law of Jus Publicum Europaeum (New York: Telos Press, 2003). Many scholars, including some who usually line up with the critics of Eurocentrism, have been influenced by Schmitt, particularly his insight that sovereignty is always formed against exceptions; the spatial dimensions of Schmitt's formulations have been given less attention. This is perhaps as it should be, but without its clear critique, the formulation of a European world of law and a non-European world of lawlessness has remained implicit in many studies.
91. On legal pluralism and global legal regimes, see Benton, Law and Colonial Cultures.
92. The term is C. A. Bayly's, from The Birth of the Modern World, 1780-1914: Global Connections and Comparisons (Malden, Mass., and Oxford: Blackwell, 2004).
93. Nasser Hussain makes this point about colonial sovereignty in exploring legal definitions of martial law as a component of both colonial and metropolitan sovereignty, relying in part on Schmitt see Much has been made of the "lines of amity" of the first half of the seventeenth century that marked the division between a zone of negotiated peace and a zone of war. Gould emphasizes the importance of demarcating two Atlantic legal zones, a division he views as sharpening in the second half of the eighteenth century. Eliga H. Gould, "Zones of Law, Zones of Violence." Carl Schmitt argued that this separation was an essential element of the emerging European-centered international order; the bracketing of war in the extra-European zone, he contended, formed a precondition for order inside Europe.
94. Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003).