Early Modern Times – the public/pirate distinction

Early Modern Times - the public/pirate distinction

Dear readers,

This past week, the now-former UK Foreign Secretary Jeremy Hunt declared the Iranian seizure of a British-flagged tanker an act of ‘state piracy’. The idea, however, that piracy could be committed by a state runs counter to the United Nations Convention on the Law of the Sea (1982), which defines piracy as ‘illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship…on the high seas…outside the jurisdiction of any State’ (Article 101, my emphasis). In other words, according to international law, maritime piracy is always for private ends by private individuals: ‘state piracy’ is an oxymoron.

But the former foreign secretary is on to something, such that this not a futile, fruitless Hunt. Students in the EMSP course The Pirate & Piracy learn that state piracy was in fact a prominent feature of early modern sea robbery. Although by the eighteenth century, increasingly powerful European empires sought to enforce a hard distinction between piracy and privateering–the latter a form of strictly regulated piracy commissioned by the state–the sixteenth and seventeenth centuries witnessed a blurring of this distinction, such that we can safely (or perhaps ‘dangerously’?) use the term ‘state piracy’. Since early modern pirates pierced their ears and wore gold rings to pay for decent burials, we might say that even ‘private-earrings’ were public earrings.

The most successful example of state piracy in the sixteenth century was surely the Barbary Corsairs (depicted above attacking a French ship). These were pirates based on the Barbary coast of North Africa, many of whom were exiled from the Iberian peninsula as a result of the Reconquista. Thirsty for revenge (especially given the dry climate of Barbary and the undrinkability of the seas), the Barbary Corsairs raided European ships sailing on the Mediterranean for both their private benefit and on behalf of the Ottoman Empire. Local rulers and governors would get a cut of the booty in exchange for providing the Corsairs with a base of operations. These pirates, who drove European insurance rates to skyrocketing levels, were rather well-groomed chaps, as they had professional beard-cutters on-board their galleons: Barber Coarse-Hairs.

The states of Europe occupied the low ground (at sea-level, in fact), and deployed pirates against the Ottomans and their Christian rivals. For example, England was hardly the dominant sea-power that it became in the eighteenth and nineteenth centuries, and relied on pirate-privateers like John Hawkins, Francis Drake, and Henry Morgan to attack its enemies and constitute its navy when at war with other maritime powers. Queen Elizabeth I famously called Francis Drake ‘my pirate’; and throughout the sixteenth and seventeenth centuries, these sea-dogs and buccaneers would either set sail without a letter of marque (a privateering commission) or exceed the terms of the letter of marque–and yet receive the post-facto approval of the Crown for their often exceedingly violent piratical activities. Such pirates lived for the glory of sea-robbery, such that their slogan could well be ‘a man’s home is his forecastle.’

Legal theorists debated the legitimacy of state piracy. The sixteenth-century Italian-born English jurist Alberico Gentili opposed the blurred distinction between piracy and privateering: if the purpose of sea-robbery is to advance public ends, then it is an act of war and thus not piratical. That is to say, this thinker ‘Gentili’ but firmly disagreed with the notion of state piracy.

The great Dutch philosopher Hugo Grotius (the latinized version of his Dutch name Huig de Groot) capsized Gentili’s efforts. The occasion for his treatment of piracy was Captain Jakob van Heemskerck’s seizure of the Portuguese carrack (a large trading ship) the Santa Catarina in the Straits of Singapore in 1603. Heemskerck did not have a privateering commission from the Dutch East India Company, nor was this an act of self-defence. His piracy was in retaliation for the Portuguese monopoly of trade in Asia and their harrassment of Dutch shipping in the region. Given his malicious feelings towards the Portuguese, the Santa Catarina was in dire Straits.

After Heemskerck captured his prize and hauled it back to Amsterdam–to the great profit of both himself and his merchant-patrons–the Dutch East India Company commissioned the rising young jurist Hugo Grotius to prepare a brief legal defence of Heemskerck’s actions based on ‘natural law’. Instead of a short pamphlet, Grotius instead wrote the massive treatise De jure praedae commentarius (Commentary on the Law of Prize and Booty) in 1605. He argued that Heemskerck was engaged in a ‘just war’ against the Portuguese. If piracy is defined as violating international law, then it was in fact the Portuguese who were the true pirates, as they breached the Hollanders’ natural right to free trade. Therefore, Heemskerck committed a legitimate act of piracy on the Portuguese, who were involved in state-sponsored piracy against the Dutch. The Company thought that such an argument was ‘booty-licious’ (though Grotius’s enemies must have seen poetic justice in the fact that he later died in a shipwreck off the coast of Germany).

Although the Commentary was not published until the rediscovery of the manuscript in the nineteenth century, the ideas contained within it were the basis of his most famous work, De Jure Belli ac Pacis (On the Law of War and Peace, 1625). Grotius’s account of state piracy thus informed this foundational text of modern international law. Those who would criticize state piracy, then, could very well assert (in reference to his original Dutch name), ‘in Groot we trust’, and express their Groot-fulness with a Huig thank-you. And given Grotius’s influence on the modern language of natural rights and international law, it might be said (borrowing from The Guardians of the Galaxy) that ‘we are de Groot’.

Early Modern Times will return on August 10-11!

’til then,

Simon Kow

Captain, Early Modern Piratiocination Studies Program

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