In the late sixteenth century the Italian civil lawyer Alberico Gentili, a Protestant who settled in England after fleeing the persecution of the Catholic Church, wrote from his post at Oxford that enemies ‘are those who have officially declared war upon us, or upon whim we have officially declared; all others are brigands or pirates’ (hostes hi sunt, qui nobis, aut quibus nos publice bellum decreuimus caeteri latrones, aut praedones).[1] These words, which were based on the works of the Roman legal theorists Sextus Pomponius and Ulpian, served as the foundation for Gentili’s concept of just war (iustum bellum) as a conflict between two or more parties, sovereign states that shared the same legal status and respected the law of nations. As Gentili reminded his readers, it was impossible to have a ‘state of war’ with pirates and brigands since the law of war ‘is derived from the law of nations, and malefactors do not enjoy the privileges of a law to which they are foes’.[2] The law of nations was ‘an agreement and a compact’ and those ‘who have withdrawn from the agreement and broken the treaty of the human race’ could never enjoy any legal right.[3]

Until the Offenses at Sea Act of 1536, the English had punished piracy as a civil offence, not unlike the crimes of highwaymen.[4] The Offenses at Sea Act established that piracy should be treated according to common law processes, which allowed for accomplice testimony and a trial by jury.[5] Increasingly, however, defining piracy required an attention to both domestic and international codes of law, for, in the words of Gentili, ‘pirates are the common enemy of all mankind’ (Piratae omnium mortalium hostes sunt communes), and should be excluded from any kind of protection offered by the norms that regulated a just war.[6] Pirates and other lawbreakers, Gentili noted, ‘have utterly spurned all intercourse with their fellow men’, living ‘in the manner of wild beasts, and each one carried of what fortune offered to him as prey, trained to use his strength in accordance with his own impulses and to live for himself alone’, rather than for the common good.[7] Applying Aristotelian ideas of society to the particular problem of the rise of piracy and its shaky relationship to the English state, Gentili classified pirates as criminals whose decision to live outside the rule of law made them a threat to the civilised world more generally, living outside any regard for the law, international or civil.[8] Influenced by Gentili and Roman laws against piracy, Edward Coke argued that pirates as ‘enemies of mankind’ (pirata est hostis humanis generis) should be trialled and punished as traitors.[9]

This perception of pirates as marginal figures or potential traitors was problematic, however, when reasons of state were considered. The English, as other European maritime powers, relied on their commissioned private agents to attack the merchant fleets and ports of enemy or rival states. English monarchs often used legal instruments such as letters of marque, a document that established the conditions in which a state employed naval private agents to commission attacks on Portuguese, Spanish, French and Dutch ships. The considerable profits obtained from these commissions led many merchants to petition the Crown for the concession of letters of marque. In May 1627, a group of London merchants petitioned the ‘illustrious Prince, George Duke of Buckingham, Lord High Admirall of England’ to intervene on their behalf and obtain from the king a letter of marque ‘for a voyage to Barbary in trade, and warfare’.[10] The relationship between state and private agents stipulated by letters of marque led to the association of the term ‘privateer’ with these special assignments. George Carew, in his Lex talionis, or, The Law of marque or reprizals (1682), defined these instruments as ‘ambulatory, and revokable at Pleasure, being usually granted to all persons in all Nations that will ask for the same, to weaken the Enemy; as they did at Oast-End, Dunkirk, Flushen and Diep, in the times of War between Spain and England, France and England, and Holland and England; and those are called Privatters, or Private men of War’.[11] At this time, other terms, such as ‘buccaneer’ or ‘corsair’, were also associated with state-sponsored maritime piracy across the Atlantic and the Mediterranean. ‘Corsair’ usually identified the French, Italian, Ottoman and other Mediterranean equivalents of privateers. William Oakely, for example, complained that the southern Mediterranean coast from Algiers to Istanbul was plagued with ‘Turkish Corsairs, which have long Tyrannized in, and been a Terror to the Neighbouring Seas’.[12] ‘Buccaneer’ was a term used to refer to state-sponsored private pirates in North America and the Caribbean. The author of The English empire in America (1685) celebrated the actions of the English ‘Privatiers, or Bucaniers Sloop, and Boatmen’ based in Jamaica for ‘their dayly attempts upon the Spaniards in Panama and other places, which for the hazard, conduct and daringness of their exploits have by some been compared to the Actions of Caesar and Alexander the Great’.[13] Such grandiloquent and nationalist language aimed to attenuate the moral and legal ambiguity of predatory sea rovers in the Caribbean by highlighting their service to the English state.

Gentili’s vision of pirates as outlaws was complicated by the dependence of Tudor monarchs on the monies and commodities pirates might acquire. Defining ‘the pirate’ in early modern England was problematic and subject to flux, not least because merchants and captains frequently accused other European powers of committing acts of piracy on English vessels, while the English themselves did not shy away from committing similar act themselves in the Mediterranean, the Indian Ocean, and, increasingly, the Atlantic.[14] England’s strained relationship with Spain throughout Elizabeth’s regime had given pirates an ambiguous but at times privileged role in the advancement of the realm. The lives and careers of individual pirates expose the precariousness of their reputations and legal standing. Francis Drake remained a favourite of Elizabeth’s, widely celebrated by Protestant writers as the scourge of the Spanish empire in the Atlantic long after his death in 1596. Walter Ralegh, another of Elizabeth’s favourites, lost his political power after James’ accession to the throne, failed disastrously to find gold in his voyage to Guiana in 1617, yet gained a formidable reputation in popular lore. Elizabeth indulged Drake and Ralegh as heroes, while Drake’s exploits also contributed to an enduring ‘populist affective bond with the nation’ that was not always directly related to the monarchical state, but rather with mercantile activity and the expansion of trading corporations.[15] Elizabethan pirates were often ‘cast as defensive measures used to protect English commerce’, whereby a series of grants and concessions of privateering led to its legitimization.[16]

The legal standing of pirates changed drastically in England with the death of Queen Elizabeth. Under James, a condemnation of piracy replaced the aggressive Protestantism of the Elizabethan era, with all pirates being declared illegitimate and outlawed.[17] The Venetian ambassador in London in 1603 reported that when James heard of an English privateering attack on an Italian ship, the king ‘twisting his body, striking his hands together … took the memorandum … and said in a loud voice, 'By God I’ll hang the pirates with my own hands’.[18] This evocative image of James writhing ‘in a passion’ and ‘with extreme impatience’ about piracy demonstrates his very real hatred of the pirate as one who interfered with the complex diplomatic interests of international law. ‘Don’t you know’, Robert Cecil informed the Italian ambassador, ‘that these are pirates, who took to buccaneering under the late Queen, and since God gave us his Majesty for our sovereign not one privateer has set sail’.[19]

Cecil’s careful language may have represented the state’s official response to piracy, but individuals who engaged in the lucrative business of privateering were not always prepared to give it up. Peter Eston was one such pirate. Having fought against the Spanish in the Armada of 1588, Eston was undefeated in his sea battles, had pressed coastal fisherman into service, and amassed a formidable personal fleet of some twenty ships. Although James cancelled his letters of commission, Eston continued to attack ships in the Atlantic, particularly around Newfoundland. Whereas Elizabeth had channelled Eston’s energies to the benefit of the Crown, James’ hard anti-pirate stance only revealed the ruptures between monarchical power in theory and practice. When James offered Eston a pardon, the pirate actually refused. He was ‘a famous pirate’, an ambassador in London observed in 1612, ‘who haughtily refused the pardon offered by his Majesty, declaring that he would not bow to the order of one king when he himself was in a way, a king as well’.[20] Eston retired in Savoy and lived as the Marquis of Duchy, living comfortably off a lifetime of spoils.

The other choice available to pirates was accepting the king’s terms. Henry Mainwaring, who attacked Spanish ships on the Barbary Coast, accepted James’ pardon in 1616. Assuming the role of the humble, reformed pirate, Mainwaring presented the king with a ‘Discourse on Piracy’ and finished by serving in the royal navy, supporting the royalist cause in the English civil wars. Mainwaring admitted that ‘experience proves it to be undoubtedly true, that English Pirates do first arm and horse themselves within your Highness’ Dominions’, reinforcing the idea, among authorities, that piracy was a form of rebellion or banditry that started with dissident behaviour on land.[21] ‘I fell not purposely but by mischance into those courses’, Mainwaring insisted, and ‘being in them, ever strove to do all the service I could to this State, and the merchants’.Main16182 Mainwaring played on the legal ambiguities of early modern English piracy, emphasizing the patriotism of the pirate in serving the monarch and bolstering the realm’s political economy.

Literature in the late sixteenth and early seventeenth centuries celebrated commercial piracy, in some ways, as an alternative to, or an adaptation of, the gentlemanly, knightly ethos, where pirates were cast as patriotic merchant-adventurers or shrewd pragmatists who nonetheless might serve English interests in the faraway.[22] Claire Jowitt has pointed out that in the writing of a huge range of English authors, from the prose fiction of Sir Philip Sidney and Lady Mary Wroth, to the plays of Shakespeare, Thomas Heywood, Philip Massinger, and Robert Daborne, as in anonymous broadsheets and ballads in cheap print, the figure of the pirate played a vital conceptual role, 'simultaneously both central and marginal to orthodox conceptions of English identities'.[23] As she has shown, 'different pirate typologies express and explore vital issues facing the nation, which are refashioned for changing circumstances'.[24] This is particularly evident in the popular drama of the period, which includes plays such as The Famous Historye of the life and death of Captaine Thomas Stukeley (acted c. 1596-7), Thomas Heywood's Fair Maid of the West, Part 1 (composed between 1596-1603), Thomas Heywood and William Rowley's Fortune by Land and Sea (1607-9), Robert Daborne's A Christian Turned Turk (1612), and Philip Massinger's The Renegado (1623/24). Pirates in such plays were presented as fascinating explorers and martial figures whose 'adventures' shift between the mercantile and the chivalric, even as they were denounced and punished as liminal, wandering figures of unlawful, unregulated violence.

Scholarship on piracy must also take into account the discrepancy between the status of ‘pirate’ and how such individuals actually saw, and termed, themselves. While Drake was celebrated in Thomas Greepe’s The true and perfecte newes of the worrthy and valiaunt exploytes, performed and doone by that valiant knight Syr Frauncis Drake (1587), Drake’s status as gentleman would presumably have been tarnished by the label ‘pirate’, and the word does not appear once in Greepe’s text. Similarly, George Peele’s A farewell Entitled to the famous and fortunate generalls of our English forces (1589) and Philip Nichols’ Sir Francis Drake revived (1626) referred to Drake as a ‘general’ or ‘captain’, never ‘pirate’. Letters sent to Elizabeth’s privy council concerning Drake similarly referred to him as ‘knight’ or ‘lord admiral’.[25] The brave navigators of England were not pirates but those who ‘will adventure their lyves, in all Casualities and dangers of the Sea: And against all violence of Pyrate, or any open warryor: And that, not, for their own Private Quarrell: But for the Publik Safety, and Security, of all England’.[26] Conversely, the Spanish repeatedly called the English merchants and colonists ‘pirates’. One Spanish captive in the English colony in Virginia likened Jamestown to the most infamous den of piracy in the Mediterranean Sea: ‘this new Algiers in America, which is being established’ in Virginia, he wrote to a Spanish ambassador in London, has made the colonists nothing but corsairs, and the colony might easily become ‘a gathering-place of all the pirates of Europe’.[27] For all the English praise of the individual go-betweens who seemed to fight so intently for English interests abroad, the ‘pirate’ was not an enviable status for those who sought preferment and honour within the realm. Other terms appeared in its stead in pro-English expansionist propaganda: ‘captain’, ‘privateer’, ‘navigator’, ‘commander’. On the other side of this, certain words that might be associated with the actions of the pirate are also tellingly absent, such as ‘kidnapper’ or ‘slaver’.

Encounters with pirates continued well into the seventeenth century, as English men and women continued to advance the nation's territorial and commercial aims. The absence of a coherent legislative apparatus in English colonies, rendered laws against pirates in the Atlantic particularly difficult to regulate, and the High Court of Admiralty could overturn the decisions made by colonial courts.[28] Besides, both colonial and metropolitan authorities often protected or stimulated acts of piracy that suited their strategic interests. This confusing situation was recognised in 1700 with the issuing of an ‘A Act for the More Effectual Suppression of Piracy’ (11 Will. 3, c. 7), a legislative effort to end the complaints that ‘Persons committing Piracies, Robberies and Felonies on the Seas, in or near the East and West Indies, and in Places very remote, cannot be brought to condign Punishment without great Trouble’ by empowering the English colonial authorities to arrest, try and punish pirates ‘in any of his Majesty’s Islands, Plantations, Colonies, Dominions, Forts, or Factories’.[29]

At the forefront of English growth were its commercial companies, who fiercely protected their trading monopolies from interlopers who traded outside of the company. As these trading companies gained ascendancy in the later seventeenth century, they increasingly sought to punish those who acted outside their regulations, often punishing them as pirates. The English merchant and East India Company (EIC) employee, Edward Misselden, believed pirates to be one of the major ‘forreine causes’ for the nation’s ‘want of money’.[30] Like pirates, Misselden maintained, interlopers into trade were ‘evill Engines’ who subverted the finance and power of the ‘Companyes, yea, Kingdomes also’.[31] Company officials believed interlopers were worse ‘than Pirates & deserve as much to be hanged’.[32] In the early 1690s, the company came under fire after several incidents concerning so-called English pirates in the Indian ocean, the most famous of which involved the seizing of two Mughal ships in the Red Sea by the English Captain Henry Avery. Angered by the incident, Mughal officials banned all European trade out of Surat and requested the company to punish Avery. The company, which had long declared itself the only government over English people in the east, promised to pay full financial reparations. At Avery’s trial one year later, the Advocate of the Admiralty Dr. Thomas Newton accused him of practicing ‘many and great Pyracies’.[33] According to Newton the act of piracy exceeded ‘[t]heft or Robbery at Land’, and that this case particularly highlighted how to ‘suffer pirates’ would mean the ‘Commerce of the World must cease’, leading to the ‘destruction of the Innocent English in to Countries’ and to the ‘total loss of the Indian trade'.[34] Newton thus concluded that a threat to England’s commercial and territorial aims piracy was a threat to the nation and would lead to the ‘Impoverishment of this Kingdom.’[35]
Throughout the sixteenth and seventeenth centuries, the pirate both evaded authorities and acted on their behalf; represented dangerous self-seeking behaviour that harmed the state, and could be admired and celebrated as heroes who advanced the glory of the commonwealth. Serving, at times competing against, Crown and commonwealth, pushing the boundaries of lawful violence and starkly exposing the governing regime’s ability to execute justice, the ‘pirate’ could also be a courtier or a merchant, a naval commander or a traitor. Enemy of all humankind though he may be, such a figure continually served as a prism through which the English interrogated nascent ideas of national identity and belonging.
1. Alberico Gentili, De Iure Belli Libris Tres, ed. by Thomas Erskine Holland (Oxford: Clarendon, 1857), p. 13.
2. Ibid., pp. 13-4.
3. Ibid., p. 14: Et alia ratione nec ius bellihabent: quia ius belli a gentium jure est : et tales non fruuntur illo iure, cui hostes sunt. His, qui a communione se subduxerunt, atque foedus humani generis (...) abruperunt, ius qui manet, quod nihil, nisi communio, et foedus est.
4. Megan Wachspress, ‘Pirates, Highwaymen, and the Origins of the Criminal in Seventeenth-Century English Thought’, Yale Journal of Law & Humanities, 26 (2015), pp. 301-43.
5. Quoted in Peter T. Leeson, ‘Rationality, Pirates, and The Law: A Retrospective’, American University Law Review, 59 (2010), 1219-30 (p. 2220).
6. Ibid.
7. Ibid.
8. Quotations taken from Peter Schröder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’, in The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire, ed. by Benedict Kingsbury and Benjamin Straumann (Oxford: Oxford University Press, 2010), pp. 174-6.
9. Edward Coke, The third part of the Institutes of the laws of England (London, 1644; Wing C4960), p. 113.
10. ‘Petition of John Webber, Thomas Lintall, and others...for a voyage to Barbary’, in Calendar of State Papers: Domestic, Vol. LXIV, ed. by John Bruce (London: Her Majesty's Public Record Office, 1858), p. 186.
11. George Carew, Lex talionis, or, The Law of marque or reprizals (London, 1682; Wing C549), pp. 24, 26.
12. William Oakley, Eben-ezer, or, A small monument of great mercy (London, 1684; Wing O193), sig. Cr.
13. R.B., The English Empire in America (London, 1685; Wing C7319), p. 209.
14. Christopher Harding, ‘“Hostis Humani Generis” — The Pirate as Outlaw in the Early Modern Law of the Sea’, in Pirates? The Politics of Plunder, 1550—1650, ed. by Claire Jowitt (London: Palgrave Macmillan, 2007), pp. 20-38.
15. Mark Netzloff, ‘Sir Francis Drake’s Ghost: Piracy, Cultural Memory, and Spectral Nationhood’, in Pirates? The Politics of Plunder, p. 139.
16. Ibid., p. 140.
17. Claire Jowitt, The Culture of Piracy, 1580—1630: English Literature and Seaborne Crime (Burlington, VT: Ashgate, 2010), p. 137.
18. 'Giovanni Carlo Scaramelli, Venetian secretary in England, to the Doge and Senate, 5 October 1603’, in Calendar of State Papers Relating to English Affairs in the Archives of Venice, Vol. X, 1603—1607, ed. by Horatio F. Brown (London: Her Majesty’s Stationery Office, 1900), pp. 99-104.
19. Ibid.
20. ‘Antonio Foscarini, Venetian Ambassador in England, to the Doge and Senate, 15 October 1612’, in Calendar of the State Papers Relating to English Affairs in the Archives of Venice, Vol. XII, 1610—1613, ed. by Horatio F. Brown (London: His Majesty’s Stationery Office, 1905), pp. 429-40.
21. Henry Mainwairing, ‘Discourse of Pirates (1618)', in The Life and Works of Sir Henry Mainwaring, Vol. 2, ed. by G.E. Manwaring and W. Perrin (Toronto: Navy Records Society, 1922), p. 14.
22. Ibid., p. 141; Jowitt, The Culture of Piracy, p. 137.
23. Jowitt, The Culture of Piracy, p. 16.
24. Ibid, p. 16.
25. See, for example, 'Victualling of Ships, 13 July 1588', Hatfield House, CP 142/92; 'Mar[maduke] Darell to the privy council, July 1590', Hatfield House, CP 167/136.
26. John Dee, General and rare memorials pertayning to the perfect arte of navigation (London, 1577; STC 6459), sig. D4r.
27. 'Don Diego de Molina to Don Alonso de Velasco [Spanish ambassador in London], 28 May 1613', in Jamestown Narratives: Eyewitness Accounts of the Virginia Colony: the First Decade: 1607—1617, ed. by by Edward Wright Haile (Virginia: Roundhouse, 1998), p. 746.
28. Peter T. Leeson, The Invisible Hook: The Hidden Economics of Pirates (Princeton, NJ: Princeton University Press, 2009), p. 145; Ilias Bantekas and Susan Nash, International Criminal Law (Abingdon: Routledge-Cavendish, 2007), p. 176.
29. Quoted in Leeson, ‘Rationality, Pirates, and The Law: A Retrospective’, p. 1221-2.
30. Edward Misselden, Free trade, or, The meanes to make trade florish (London, 1622; STC 17987), pp. 17-8.
31. Edward Misselden, The circle of commerce (London, 1623; STC 17985), p. 37.
32. Quoted in Phil Stern, The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India (Oxford: Oxford University Press, 2011), p. 44.
33. The Tryals of Joseph Dawson (London: 1696, Wing T2252), p. 4.
34. Ibid.
35. Ibid.
Usage Examples
'...are those who have officially declared war upon us, or upon whim we have officially declared; all others are brigands or pirates.