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Oceans of Law: The Legal Geography
of the Seventeenth-Century Seas

Lauren Benton
NJIT and Rutgers University

 


            In April of 1696, an East India Company official on the Mallabar Coast wrote to the head of the Company at Fort St. George to respond to a complaint he knew was being lodged by a pair of traders who had been denied permission to trade along the coast, specifically in the small principality of Signaty.  Interlopers in the trade were a familiar problem for the Company, and this dispute was in many ways typical.  In making his case, the EIC official provided an unusually elaborate rationale, though.  After pointing out that the English in the area had "conquered the whole Mallabar Coast by the Right of the Sword, from the Portuguese," the official went on to make it clear that he was not claiming English possession of the region, only asserting the right to control trade.  Indeed, he was careful to point out that the Company had claimed only very limited jurisdiction in the area controlled by the Prince of Signaty.  That jurisdiction, he insisted, extended only "500 Rods from the Walls within and 60 outwards" and did not in any way compromise the sovereignty of the Prince of Signaty, who continued to be "the lawfull possessor of the said Kingdom" and to enjoy undisturbed sovereignty over the area, "Especially on the Sea Shore of Signaty."1 

            Much scholarly attention has been devoted recently to European "ceremonies of possession" in the early centuries of European overseas enterprise.  But it is important to note that possession was often not understood as claims of territorial conquest.  Europeans shared a view of fragmented legal control that led them in many places to represent their own jurisdiction as strictly limited and to view themselves as fitting into a system of shared sovereignty.2  As this EIC official noted, the Company was following a common practice "of the English and other European Nations─who by Dominion over some places, not in Europe, appropriate the Navigation and Commerce to themselves with Prohibition to all strangers that they may by an upright settled trade with the Natives reap the advantages that they find there."3

            I would like to explore this legal complexity further by examining the context for letter-writer's phrase "Especially on the Sea Shore of Signaty."  Were ideas and practices of the law └ and legal culture broadly defined └ different on the sea, and, of so, in what ways?  Was there a distinctive legal geography of ocean space?4  Scholars have tended to approach these questions from one of two directions, as part of the study of the history of international law or as an element of the study of the culture of mariners, with strikingly different results.  On one side, some historians have suggested that Europeans, unable to fathom the symbolic markers of possession on land, were equally incapable of recognizing each other's internally coherent claims to control of the oceans.5  On the other side, we find an increasing interest in internationalism and multiculturalism at sea in the emergence of a multicultural community of mariners.  This multiculturalism and proto-internationalism are particularly apparent, we are told, in the communities and actions of the ocean's social bandits: the pirates who plagued early modern maritime commerce.6  The first approach leads to a focus on the disorder and conflict resulting from clashing frameworks of law; the second emphasizes the anti-authoritarian cast of mariners rather than their role in shaping the regulatory order of the seas.  Both perspectives subtly highlight the association between ocean space and lawlessness. 

            This paper examines the ways in which the seventeenth century seas were sites not of lawlessness but of legal complexity and strategizing.  To do so, I will juxtapose a discussion of elements of international legal theory in Europe with an examination of mariners' legal strategies.  I focus especially on the tension between, on the one hand, globalizing forces that include understandings of ideas about ocean sovereignty and widespread mariner practices, and, on the other, aspects of maritime legal politics helping to produce diverging regional identities └ in particular, sharpening definitions of the Indian and Atlantic oceans as separate regulatory spaces.  Paradoxically, this regional divergence developed precisely the same time that navigation between these seas was becoming more manageable and routine, and when similar understandings of the nature of ocean sovereignty were beginning to operate across these arenas. 

            The nascent globalism of the seventeenth century was not merely opposed to regionalism, then, but also conjured it into existence.  Put differently, the global imaginary from its very inception carried within it a certain privileging of insularity.  Tensions between municipal law and international law, between regional and global legal politics, and between ubiquitous mariner practices and idiosyncratic strategies adopted in particular seas are examples of the broader tension between what Roland Greene has called "worldmaking" and "island logic" in early modern European discourse about transoceanic projects.7  For European sojourners, the newly imagined interconnected seas of the seventeenth century world were not so much lawless as they were legally divided and politically volatile.

Islands of Law

            Accounts of the early history of international law feature prominently the role of debates about sovereignty of the sea and tend to emphasize the importance of two contrasting traditions.  One, following Grotius, portrays the ocean as a place of shared dominium: its emergence, in essence, as a quintessential and early example of truly international arenas.  The other, traced mainly to Selden, represents the sea as a territorial extension where sovereignty was possible on the same terms as on land.  This narrative of dual origins substantially oversimplifies developments in legal theory, and the complexities turn out to be quite helpful in understanding the management of actual legal contests on the oceans.

            These complexities are best grasped in the debates about the legality or illegality of acts of piracy.8  Writing at Oxford in the 1580s, Alberto Gentilli defined illegality at sea as a function of sponsorship.  In this approach, takings at sea were viewed as analogous to acts of robbery on land.  What mattered was the definition of sponsors as lawful sovereigns, and merely declaring enemy states as piratical would not legally make them so.  Thus the Barbary states could not be defined as piratical, though they engaged in piracy.  By the same token, this view legitimated the sixteenth century expansion of letters of marque and reprisal as a response to seizures and helped to shape the tradition to which late-seventeenth century pirates were responding in seeking to establish the legality of their actions by showing sponsorship by legitimate patrons.  This approach opened piracy to international law by requiring legal forums to judge the legitimacy of authorizations by other sovereigns, but it also left open the possibility that international law could be represented by municipal law by proxy.  The implications for defining sovereignty of the seas are interesting.  In theory, any sovereign could extend the jurisdiction of its municipal law to foreign lands by asserting the existence of "pirates" there └ or the absence of a controlling polity.

            A close reading of Grotius offers a somewhat different approach but one that also sustains the link between international and municipal law.  In On the Law of War and Peace in 1625, Grotius rejected Gentilli's notion that actions could be denoted as piratical by withholding recognition of complete polities as having legitimate authority.  In short, there was no such thing as a lawful capture outside a state of war └ even if sponsors were legitimate.  But the effect of this argument on Grotius's view of the sovereignty of the seas is perhaps not what is expected by readers accustomed to associating him simply with the view that the sea was free for all to navigate.  Seizures not conducted in a state of war were unlawful and piratical; military presence itself, then, created the conditions for the extension of a country's municipal law into ocean space:

[S]overeignty over a part of the seas is acquitted in the same way as sovereignty elsewhere, that is,─through the instrumentality of persons and of territory.  It is gained through the instrumentality of persons if, for example, a fleet, which is an army afloat, is stationed at some point of the sea; by means of territory, insofar as those who sail over the part of the sea along the coast may be constrained from the land no less than if they should be upon the land itself.9

Grotius thus did not contemplate a sea space that was under the control of an international authority but rather one in which various sovereign nations operated "in tension with one another" without interfering in each other's rights to travel and trade freely.10  His views built upon a medieval tradition of multijurisdictional law and anticipated an Atlantic order based on what James Muldoon has called "European condominium," or "Christendom without the pope."11

            These views had in common the notion that the movement of jurisdictional claims into the "international" space of the seas was a function of the extension of municipal law through the presence of legal actors with ties to particular sovereigns.  Both approaches contemplated limited jurisdiction over foreigners and relied upon an analysis of international relations in defining piracy.  Significantly, both approaches privileged questions of property in deciding such issues and were less concerned with the criminal law.  They were related, too, to an earlier, Mediterranean tradition of the extension of (limited) jurisdiction through the exercise of naval supremacy in waters close to Europe.12  The new developments paralleled, rather than guided, the legal institutional response to piracy and its control.

            The legal ordering of oceans was fundamentally similar to that on land in that jurisdictional complexity was understood as its logical result.  This complexity was asserted in everyday maritime practice in two ways:  One was the representation of the ship as a floating site of sovereign legal authority.  Ships themselves, with their elaborate shipboard disciplinary structures, were in this sense "islands of law."  They could at the extreme end of a continuum of behaviors, also be seen as "islands of illegality" or, more accurately, "islands of alternative law," where the connection to sovereigns was severed and Linebaugh and Rediker's "hydrarchy" set in.13  But these distinctions were, as Gentilli noted clearly in his own practice of defending Spanish pirates before English courts and as privateers and pirates also knew, open to interpretation.  The other understanding of the multi-jurisdictional nature of ocean law was that ships were also vectors of sovereign legal authority and extended jurisdictional claims into the waters around them and to the waters they might plausibly control.14 

            Such observations caution against an easy acceptance of historians' common labeling of the sixteenth century Indian Ocean as a "Portuguese lake" or the eighteenth century Atlantic as an "English sea."  If these were lakes, they were lakes filled with other islands of law where local control fell to other powers.  Even the authority of dominant sea powers in particular ocean spaces is better understood as a chain of islands of law rather than extensive claims to ocean sovereignty.  Still some regions of the "high seas" resisted anyone's control.  We must not take at face value the "sovereignty talk" of, for example, the Portuguese in the South Atlantic, as Seed does.15  Their claims were balanced against a broader understanding of shared dominion as a condition of ocean politics.

            This theoretical understanding of fragmented ocean sovereignty presented a close fit with the lumpiness resulting from seventeenth-century attempts to streamline maritime legal administration, in particular English efforts to construct a wide-ranging admiralty jurisdiction.  The various admiralty courts of the Atlantic colonies developed with highly localized concerns at their core └ fishing in Newfoundland, sea wrecks in Bermuda, piracy in Jamaica.16  And authority radiated out unevenly from these points.  The courts were in their operation also driven by local interests, resulting, for example, in the unwillingness in Jamaica and New York to prosecute pirates who were active clients of local merchants.  More generally, Admiralty jurisdiction evolved in continual tension and in a gradually losing battle with common law courts in England, and this long dispute climaxed in the late-seventeenth century with the significant curtailment of the scope of admiralty courts. 

            Two aspects of the shift in jurisdiction are particularly relevant here.  One is that the curtailment of the Admiralty court jurisdiction came to be most concentrated in the area of commercial law; the criminal jurisdiction of the court └ its jurisdiction over piracy └ was relatively unchallenged, as was its jurisdiction over prize cases.  The second result was the progressive narrowing of the Admiralty Court's jurisdiction to "the high seas."17  Coke's influential view was that common law matters that took place at sea were still under the purview of common law courts, though there was no reciprocal mechanism for the reach of admiralty courts to disputes arising on land but involving affairs of the sea.  For Coke, actions had to arise on the high seas.  In defense of the admiralty jurisdiction, prominent civilians argued that the forum and its laws were peculiarly suited for handling matters involving commercial activities of shipping, in ports, and on navigable rivers, having incorporated the customary law of the sea, which in turn constituted simply the sea-based portion of ancient Lex Mercatoria.18   The civilians drew support from John Selden's response to Hugo Grotius and his 1663 argument that England could claim dominion over all the seas surrounding its territories.  Addressed specifically to the problem of encroachments by Dutch fishermen, the tract proposed a form of territorial sovereignty of the seas and could be extended logically to apply also to North Atlantic waters.  For the civilians, the relevance was the implicit support for admiralty jurisdiction over all "English" seas.  Yet it was Coke's view that was to prevail.19  In practice, the definition of the high seas sharpened as a special legal place, different both geographically and in the kinds of disputes that arose there.  This was another source of insularity for ocean law, at the same time that the trend supported the reach of municipal law into ocean space. 

            Despite the considerable ambiguity surrounding admiralty jurisdiction, the negotiated and fluid legal boundaries did not mean that the seas, or Englishmen within them, could stand outside the law.  However, the confused legal politics and the constraints of long-distance legal administration meant that the presence of metropolitan-centered law was geographically quite uneven.  This unevenness no doubt contributed to mariners' miscalculation of the strength of English legal attention to Indian Ocean piracy.  British law in the Indian Ocean was a nearly invisible presence and was inconsistently effective in the different regions of the Atlantic. 

            Regional legal divergence also structured mariners' (and pirates') legal strategies.  Privateers, for example, engaged liberally in maritime forum shopping.  Once prize courts were ubiquitous, it became possible to secure a letter of marque in one port and take prizes to another forum, where captures and shares might be awarded more favorably.20  Thus the creation of a colonial admiralty court system extended English legal authority through the empire at the same time that it opened new avenues for avoiding courts in England and in particular colonies.  The geographical spread of imperial law went hand in hand with a new kind of fragmentation.

            This pattern is particularly clear in the case of maritime law in the Indian Ocean.  The assertion of maritime jurisdiction was complicated here by the fact that the crown did not claim jurisdiction in English factories; the limited legal administration that existed was in the hands of the East India Company.  In 1683, the Company was awarded the right to suppress interloping and establish courts where necessary.  These courts operated, in effect, as admiralty courts, though they were not officially termed as such.  They were staffed by "one Person learned in the Civil Laws, and two Merchants" and were established at Surat (later moved to Bombay), Fort St. George, and the Bay of Bengal.21  The three courts developed quite differently, in response to distinct political strategies of Company officials and the kinds of cases being generated locally.  Only the court at Fort St. George, where officials were encouraged to merge common and civil law jurisdictions, did the courts operate with some efficiency.  In general, they proved relatively powerless in the face of the growing threat of piracy in the Arabian Sea at the end of the century.  Operating under the aegis of the Company, the courts had no direct connection to the navy to enforce sanctions, no appeal to privateers as a place to bring prizes, and no direct connection to the High Court of Admiralty in England.  In fact, there was some confusion about whether the courts in India were official prize courts.  This ambiguity was not cleared up until 1739, when the EIC legal advisor, in response to a query from the Company principals for clarification on precisely this issue, ruled that the Indian courts were not prize courts and formally requested that they be given authority to issue letters of marque and to adjudicate prize cases.22   The role of connecting this legal arena with that of the Atlantic world was left to English investors, to Mughal officials, and to mariners and pirates themselves. 

What "pirates" thought (Captain Kidd, for example):

            As seventeenth-century European mariners traveled from one ocean region to another, they learned in part from practice and in part from locals about patterns of ocean currents, the navigation of dangerous coasts, the location of safe harbors, and the expectations of coastal rulers regarding rituals of trade.  They also carried with them certain categories of cognitive geography that informed their choices, and the influence of experiences with maritime practices in the northern seas, the Mediterranean, and the Atlantic.  Perceptions of regional distinctions sharpened not simply, nor even principally, as a result of adjustments to different cultural or regulatory practices but, paradoxically, out of the diverging political dynamics generated by globalizing maritime practices. 

            To see this connection, we need to take a closer look at mariners' legal strategies.  Sailors' familiarity with the various ways to establish the legality of their actions suggests a certain disconnect between representations in Europe of lawlessness "beyond the line" and the understandings of sailors (and colonial officials) themselves.  Because mariners had one eye always on return and the possibility, however remote, of being brought to trial, they rehearsed stories that would legitimate their actions.  They certainly had some shared knowledge of defense arguments that might serve them, and they often made efforts even when very far from home to preserve the pretense of legality.  Such efforts extended, albeit unevenly, across the ocean world.23

            The voyage and trial of William Kidd offer a particularly good window into both the legal perceptions of and reactions to piracy and its local variations.  Kidd began his career in the Caribbean, sailed from New York, obtained sponsorship from the highest reaches of London society (including the King), traveled through the South Atlantic and into the Indian Ocean, returned to New England via the Caribbean, and was tried and hanged in London in 1701.24  He was part of a larger cohort of pirates who were responsible for disrupting  Mughal-owned shipping between Mocha and Gujarat in the 1690s.  The most spectacular seizures involved ships carrying not just goods but also pilgrims, some of them members of the Mughal court, on their return voyage from Mecca.   Kidd, like his peers, fashioned out of his experience in the Atlantic an imperfect framework for understanding Indian Ocean maritime politics.  Even as he misjudged the larger forces of imperial politics that would lead to his being turned into an example, he operated on the more or less accurate assumption that the Atlantic system of letters of marque and the Indian Ocean pass system both rewarded the exploitation of legal ambiguity.  Like other seventeenth-century pirates, Kidd never perceived his actions as entirely outside the regulatory order and fashioned a narrative of his voyage that he hoped would protect him at trial. 

            In the Atlantic, letters of marque and letters of reprisal could be broadly interpreted to permit attacks on a wider range of targets; national identities could be changed or disguised to render illegal seizures quasi-legal; and the disciplinary order of ships themselves could be invoked to blame acts of piracy on captains' orders or on the intimidation of mutinous crews.  Added to these conditions was the simple fact of geographical distance, which could be invoked by privateers, pirates, and their backers to justify attacks on shipping because of the slow pace of news travel and the ambiguities of diplomacy and war-making "beyond the line."25  The privateering commission had neither uniform standing nor consistent terms; in many cases, it was little more than sham. 

            Yet pirates sought out commissions and labored to interpret them favorably.  Henry Morgan, for example, carefully analyzed the scope of his commission of 1667.  The commission did not authorize attacks on Spanish targets, but it did allow Morgan to stop Spanish ships to determine if the Spaniards were plotting against Jamaica.  Morgan was certainly aware that if he concocted a story about a discovered plot against the English, it would provide a rationale for aggression.  And the commission's failure to condone land attacks made them all the more attractive.  The crew would be able to divide the booty from such raids among themselves without worrying about shares for the ship owners or the crown.  Morgan clearly understood this opportunity and formed a contract with his crew that distinguished between the "free plunder" taken on land and goods captured from ships that would have to be taken to a prize court for distribution according to a predetermined formula.26

            Pirates went out of their way to obtain flawed commissions and even to represent fraudulent commissions as valid.  At his trial for piracy in the English Channel (a capture that followed a longer stretch of piracy in the Atlantic), George Cusack presented a commission in someone else's name; the court rejected his explanation that his own valid commission had been accidentally exchanged for the invalid one he carried and pointed out that even a commission in his own name would not have entitled him to capture an English ship.27  William Dampier also reports on the enthusiasm for flawed commissions in describing a pirate voyage to raid Spanish ports on the Pacific in the 1680s.  The ships in Dampier's party, captained by Edward Davis and Charles Swan, met up with a large group of French and English freebooters off the coast of Panama.  In exchange for provisions, the French captains offered the English pirates blank commissions issued at Petit GoŐve.  Davis accepted one to replace his expired commission, but Swan chose to keep his commission from the Duke of York.  Though it explicitly ordered him not to attack Spaniards, he reasoned that a skirmish at Valdivia, where some of his crew had been killed, could be used to argue that subsequent raids on Spanish ports were justified and that "he had a lawful Commission of his own to right himself."28

            This attention to legal niceties in the midst of open raiding was carried, not surprisingly, into the Indian Ocean, where it meshed well with a different regulatory order.  The Indian Ocean pass system offered substantial room for interpretation.  The system had developed out of an innovation of the Portuguese, in turn based on eastern Mediterranean models, requiring every Asian merchant within Portuguese purview to purchase a pass or license called a cartaz.  The passes were purchased at the beginning of journeys and required stopovers in Portuguese-controlled ports where customs duties were paid.29  The Dutch, English, and French adopted the pass system in modified form in the seventeenth century.  Though Lane argued persuasively that this system stood for little more than the collection of protection money, Om Prakash points out that it rested not just on the superior strength of European ships and armaments but on a delicate balance between Europeans' maritime superiority and "their almost total vulnerability on land for a long time."30  The pass system was only profitable if diplomatic relations with Asian land-based powers permitted trade.  To secure this cooperation, rival European merchants often found themselves in informal alliance across national lines.  Thus we find records of close Portuguese cooperation with Dutch traders on the Coromandel coast in the early seventeenth century and later in the century with the English.  Dampier noted in 1684 that English ships were traveling with English passes but Portuguese pilots; a decade later they were even flying Portuguese colors.31  There were many other examples of a pragmatic intermingling of European interests.  In addition, English trade in particular interpenetrated with Asian trade so that the ownership of goods on board a given ship was often mixed.  Any experienced trader in the east would know that the pass system provided only a loose set of rules for much more complex and layered arrangements. 

            A key difference with Atlantic conditions lay not in the substance or structure of maritime regulation but in the regional and global political impact of Mughal authority.  Kidd's undoing was not after all the coordination of British legal authority └ it was highly fragmented as we have seen └ but the importance of the protests of the Mughal emperor.  Though Indian Ocean traders before 1500 did not militarily enforce their right to trade at sea, they were accustomed to using diplomacy and viewed their control of selective ports as key to the protection of trade interests.  In The Social Construction of the Oceans, Steinberg argues that prior to the incursions of the Portuguese in the Indian Ocean, no power in the region held a view of maritime jurisdiction that paralleled that of the European Mediterranean and, later, the European-controlled Atlantic.32  That is, ships at sea were not viewed as extensions of land-based power and the sea itself was understood as a space without controls.  This tradition initially became the empire's policy by default after a series of dramatic demonstrations of European maritime superiority.  For example, 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."33 

            Yet, there is much evidence that Mughal officials quickly grasped the possibilities of turning European understandings of maritime jurisdiction in the region to their advantage.  Doing so requited, after all, only an extension of existing Mughal arrangements of land-based jurisdictional complexity.  Perhaps the clearest sign of this adjustment was the Mughal response to the taking of the Ganj-I Sawai, the largest ship of the Surat merchant fleet, captured by English pirates on its return trip from Mocha in 1695 and laden with trade goods and with wealthy, well-connected passengers aboard returning from the pilgrimage to Mecca.  Trade out of the European factories was stopped, while the Mughal court demanded that the English and Dutch send armed ships in convoys to protect shipping from Mocha.  English traders were imprisoned └ 53 at Surat and 18 at Swalley └ and more than a dozen died in the close quarters.  Two years later, an English ship bound for Madras was also seized in response to pirate attacks by "three Saile of Arabs" and "after having Cruized up and down the Gulf five or six day[s]" was plundered and all its crew imprisoned on shore after first having been forced to assist in fighting off an attack by a Portuguese ship.34 

            The EIC officials involved in these acts of reprisal characterized them as piracy.  But their complaints about the lack of procedural formality surrounding the seizures also underscored their understanding that the reprisals were part of a more elaborate legal politics.  The senior EIC official at Surat wrote to the company about the "barbarous usage we have met with from these unreasonable oppressive Moors on no real and only Base affirmacions of the rabble without somuch as the Least Shadow or pretence of proof."35  The same complaint about the lack of attention to procedure was sounded by the captain of the Madras-bound ship, who noted the "absence of any official proceeding" as the crew and passengers were taken into custody.36  At the same time that British actors complained about the illegality of the seizures, they signaled their expectation that such acts should follow formal procedures as part of a larger diplomatic and legal relationship.  On the Mughal side, the taking of English ships was an action in coastal waters to complement the pressures it exerted on land.  Insisting that Europeans collaborate to pacify the pirate-ridden Indian Ocean was, in effect, to hold these powers to their jurisdictional claims over ocean space.37  Like the English trader in Signaty whose letter I cited at the beginning of this paper, Mughal officials insisted on their rights by paradoxically reaffirming English sovereignty over the sea.  This complex legal politics was consistent with, rather than markedly divergent from, separately existing European and Indian practices - and it was supported in its complexity by European understandings of the law of the sea.38 

            Kidd was thus both right and wrong in extending an Atlantic logic into the Indian Ocean.  When arrested, his defense for capturing two merchant ships in the Indian Ocean, one owned by a member of the Mughal court, rested on his possession of the two French passes seized from the ships.39  Conveniently for English authorities, the French passes were misplaced after his arrival in England and Kidd, despite his protests, was never able to present them at trial.  But Kidd was not irrational, only unlucky; in a different political moment, the passes might even have saved him.  Instead, his logical and imitative extension of Atlantic strategies into the Indian Ocean arena resulted directly in the English campaign to capture him and, in the process, helped to stimulate tighter controls on piracy in the Atlantic and a more explicit recognition of divided legal sovereignty in the Indian Ocean. 

Global Practices in Bounded Seas

            Various historians of early European overseas ventures have signaled the importance of islands as a universalizing geographic trope, their use as key stopping or staging areas in European trade and colonization, and their special role in accumulating knowledge about global spaces.40  As often fortified places from which Europeans conducted trading and raiding expeditions, islands were liminal places that combined some of the characteristics of the ocean └ or, more precisely, of ships within the oceans └ and of the terra firma.  They were bounded and knowable places, and their early mapping merged categories of local and global knowledge by, on the one hand, relying on reconnaissance and knowledge gained from indigenous captives and, on the other, figuring as essential elements in the efforts to refine a truly global geography.41  Looking backward to fifteenth century European overseas movement, we find that the implicit and emerging understanding of oceanic sovereignty as a puzzle of islands of law fit well with a more diffuse discursive representation of global geography as a puzzle of islands of knowledge. 

            Looking forward to the eighteenth century, the politics of ocean law within seventeenth century practice and theory also shows us both the roots of international law └ the recognition of the fundamental fluidity and porousness of municipal legal control on the high seas └ as well as the practical origins and theoretical basis for the spread of British naval hegemony.   Eliga Gould portrays the eighteenth century Atlantic legal order as one that is increasingly rigidly dualist, distinguishing the legal order of Europe from extra-European arenas.42  Linebaugh and Rediker, in a different take, emphasize the conservative rebelliousness of mariner political culture, with its alternative yet derivative systems of discipline and authority in the 1720s.  These eighteenth-century patterns were layered upon the more fluid and complex legal geography of the seventeenth century and in different forms replicated the contradiction between a view of the oceans as "empty" space made orderly through the travel of civilization-bearing (and law-bearing) vessels as the floating islands and vectors of European municipal law, and the representation of the sea as a place of international regulation (conceived as the negotiated product of multiple jurisdictional thrusts).  This organizing tension was not eclipsed by eighteenth century trends; Janice Thompson, writing about global efforts to control mercenaries, pirates, and other non-state violent actors, argues that the long nineteenth century is the period of more definitive reordering.43  The shift consists in part in the opening of an arena for true internationalism in the form of inter-state agreements to suppress piracy and police the seas.  Such internationalism in earlier periods was of a fundamentally different kind and was consistent with understandings of non-territorial sovereignty forged in the seventeenth century seas.  If during this period for the first time a clear, though not consistent, attempt was being made to create a transatlantic, even global, legal order, it was understood that legal control over maritime affairs lay in the hands of particular legal authorities operating separately and only potentially in coordination.  Pirates in particular and mariners in general helped to call this understanding into existence, in part through their own strategies of hedging to sustain potential claims to legality and of playing one power off against the other.

            In summary, seventeenth century navigation was an early and impressive form of globalism, but it was not globalism tout court.  The characteristics and politics that made ocean space global also made it institutionally complex and experientially fragmented └ not one "known world," but many.  The persistence of parochialism and the failure of legal controls were less important in separating these regulatory spaces than the interlinking forces of mariner strategies, competing municipal legal claims, peculiarities of maritime law, and the collective practices used to accumulate and categorize knowledge about the oceans.  These influences did not constitute a force of anti-globalism, precisely, in part because they emerged, too, out of globalizing trends.  Together they composed a fragmented global order of a kind we tend to associate either with the era before long-distance ocean travel or with the emergence, much later, of a post-modern global experience.  Yet William Kidd would have felt quite comfortable with a description of the seventeenth century globe as kaleidoscope or pastiche: actions that were illegal but passable in one region were punishable by hanging elsewhere; powerful, "safe" sponsors transformed themselves into icons of respectability; and the words of contracts and other documents changed meaning in different latitudes.  In these stormy and confusing seas, shipboard order must have seemed the only tangible island of law in the sea └ no doubt one reason why both contemporaries and historians recite its certainties.  In contrast, the wider ocean appears lawless, but it composed a knowable regulatory order that informed global strategies and helped to shape the boundaries of oceanic regions. 


Notes

1 India Office Records (IOR), E/3/52, 6198.

2 This argument is expanded in Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900  (Cambridge, 2000).

3 IOR, E/3/52, 6198.

4 Eliga Gould uses this term in a somewhat different way in exploring eighteenth century English law in the Atlantic.  See Eliga Gould, "Britain and the Legal Geography of the Atlantic World, 1775-1824," paper presented at the Early American History Seminar, Massachusetts Historical Society, February 7, 2002.

5 The result was, according to Seed, a cacophony of international norms as "European states proposed their own versions of international rules, each claiming as universal principles those that suited their own interests best." 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), p. 202.

6 See for example, Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Beacon Press, 2000).

7 Roland Greene, "Island Logic," pp. 138-45 in Hulme and Sherman (eds.), The Tempest and Its Travels.

8 The discussion of the law of piracy draws from Alfred P. Rubin, The Law of Piracy (Newport, Rhode Island: The Naval War College Press, 1988).

9 Quoted in Rubin, The Law of Piracy, p. 30

10 Muldoon, "Who Owns the Sea."

11 Muldoon, ""Christendom, the Americas, and World Order," p. 18.

12 See Ibid. and also Steinberg, The Social Construction of the Ocean.

13 Linebaugh and Rediker, 2000.  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). See also Pablo E. P■rez-Malla═na, 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).

14 The use of ships as both centers and vectors of law is particularly well illustrated in the early history of Newfoundland, which, Jerry Bannister writes, has traditionally been portrayed as composed of "isolated fishing outposts languishing under an impotent, primitive, and corrupt legal system."  Legislation at the end of the seventeenth century, however, "empowered the fishing admirals to hear and determine all local disputes, and authorized the commanders of warships stationed each summer at Newfoundland to act as appeal judges."  Jerry Bannister, "The Naval State in Newfoundland, 1749-1791," Journal of the Canadian Historical Association 11 (2000), pp. 17-50.

15 See Chapter 4 of Ceremonies of Possession.

16 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.

17 On the complex jurisdictional disputes from the creation of the Admiralty courts in the fourteenth century, see M.J. Pritchard and D.E.C. Yale, Hale and Fleetwood on Admiralty Jurisdiction (London: Selden Society, 1993).

18 This argument was most forcefully put forward 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 Chapter 22 The Jurisdiction of the Admiralty of England Asserted, against Sr. Edward Coke's Articuli Admiralitatis (London, 1663).  For more on the diminishing influence of the civilians in the seventeenth century, see Brian P. Levack, The civil lawyers in England, 1603-1641: a political study (Clarendon). 

19 See Mathiesen, "Some Problems of Admiralty Jurisdiction," The American Journal of Legal History 2 (1958): 25-36. 

20 For example, the Newcastle Lieutenant-governor 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, p. 127.

21 Quoted in Ibid, 167.

22 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."

23 Sheer distance from home also contributed to mariners' perceptions that legal controls were looser, though never absent.  Since the time of Drake, privateers in the Pacific had paid little attention to restrictions in their commissions once they entered the South Seas.  William Kidd (see below), like other privateers and pirates traveling to the Indian Ocean, was decidedly less careful once he was on the other side of the Cape.  In the South Atlantic, he chased and overcame a small ship but did not seize it when he discovered it was Portuguese.  Kidd behaved badly in an encounter in the Atlantic with a navy squadron that was in need of men └ he sailed off without giving up any of his crew └ but this was hardly criminal behavior.  Once in the Indian Ocean, Kidd took care to solicit and preserve the French passes from his two largest prizes, but few members of his crew seemed to have had any doubt that the voyage had turned pirate. And Kidd observed no legal niceties at all in seizing smaller craft in the Indian Ocean to capture provisions.  In embracing illegality, crews in the distant Pacific and Indian Oceans were in part driven by the threat of disease and hunger to expand their definition of legal prizes.  Their accounts suggest, too, a certain sense that distance itself bent the rules.  Still, only pirates such as Avery who perceived no possibility of return without prosecution behaved as if they were entirely outside the law.  This was to change in the 1720s with the sharper criminalization of piracy.

24 Kidd's case is also a good centerpiece because it is so well documented.  In addition to Ritchie's excellent study, various accounts of the trial and a number of depositions in the case survive.  I have relied on both the documents and on Ritchie's superb narrative.  However, whereas Ritchie's goal is to show the relation between Kidd's case and English political tensions, my focus is on the perceptions of mariners of the regulatory order of the seas. Robert C. Ritchie, Captain Kidd and the War against the Pirates (Cambridge and London: Harvard University Press, 1986).  Several key trial documents are contained in Franklin Jameson (ed.), Privateering and Piracy in the Colonial Period, Illustrative Documents (New York, Augustus M. Kelley, 1970).

25 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 15th and early 16th 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 Ian Steele, The English Atlantic, 1675-1740 : An Exploration of Communication and Community (New York: Oxford, 1986).  See also note 23 above.

26 Peter Earle, The Sack of Panama: Sir Henry Morgan's Adventures on the Spanish Main (New York: Viking, 1981), pp. 60-61.

27 The Grand pyrate, or, The life and death of Capt. George Cusack, the great sea-robber [microform] : 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).

28 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), p. 136.

29 On early Portuguese-Indian interactions, see Michael N. Pearson, Port Cities and Intruders; The Swahili Coast, India, and Portugal in the Early Modern Era (2002).

30 Om Prakash, "European Corporate Enterprises and the Politics of Trade in India, 1600-1800," pp. 165-82 in Rudrangshu Mukherjee and Lakshmi Subramainian (eds.), Politics and Trade in the Indian Ocean World: Essays in honour of Ashin Das Gupta (Delhi: Oxford University Press, 1998), p. 174.

31 Kenneth McPherson, "Trade and Traders in the Bay of Bengal: Fifteenth to Nineteenth Centuries," pp. 183-209 in Politics and Trade in the Indian Ocean, p. 196.

32 Philip Steinberg, The Social Construction of the Ocean (Cambridge: Cambridge University Press, 2001).

33 Prakash, "European Corporate Enterprises," p. 170

34 IOR, E/3/53, 6404.

35 IOR, E/3/52, 6205

36 IOR, E/3/53, 6404.

37 This aspect of Indian maritime politics cannot be understood except in the broader context of attempts only a few decades earlier by Maratha insurgents to challenge Mughal authority by replicating European-style maritime trading networks.  In the 1660s and again after a brief hiatus in the 1670s, the Maratha leader Shivaji, who had developed a network of inland fortified posts, began to seize coastal towns, including two raids on the key port of Surat.  His forces established coastal island fortresses, engaged in Indian Ocean trade, and disrupted Mughal ocean trading.  One Mughal response was to insist that European traders intercept the Maratha fleet whenever possible.  Until the 1690s, Mughal authorities had been much more preoccupied with containing this threat to its authority than with negotiating with European traders.

38 The ambiguities of law in maritime Asia were recognized not just by merchants and mariners in Asia but by investors in Europe.  It was in response to the seizure of a Portuguese ship by a Dutch East India Company (VOC) ship in the Straits of Malacca in 1605 that some VOC shareholders asked Hugo Grotius to write a legal treatise "justifying the seizure and, even more important, justifying the Dutch presence in Asia, a presence that was itself a contested legal issue."  James Muldoon, "Who Owns the Sea," paper presented at Sea Changes: Historicizing the Oceans, Universitat Greifswald, July, 2000.

39 Kidd might have argued that because the Indian Ocean held no prize courts he was forced to return to the Atlantic colonies to have the legality of his capture decided there.  He could also have claimed he was exempt from prize courts under the terms of his commission.  He failed to advance either argument, though, placing the full burden of his defense on the by-then-missing French passes.  See Ritchie, Captain Kidd, p. 218.

40 For the importance of islands as a cognitive category in the Atlantic, see Barry Cunliffe, Facing the Ocean (Oxford and New York: Oxford University Press, 2001), chapter 2; the contribution of John L. Gillis in this conference; and Peter Galvin, Patterns of Pillage: A Geography of Caribbean-based Piracy in Spanish America, 1536-1718 (New York: Peter Lang, 1999), Chapter 4.

41 Lauren Benton, "Seizing Knowledge: Captivity and the European Mapping of Atlantic Coastal Waters," ms.  On the link between mapping and representations of empire more generally, see Jerry Brotton, Trading Territories: Mapping the Early Modern World (Cornell University Press, 1998); Dennis Cosgrove (ed.) Mappings (1999).

42 Eliga Gould, "Britain and the Legal Geography of the Atlantic World, 1775-1824."

43 Janice Thompson, Mercenaries, Pirates, and Sovereigns: State Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994).

 


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Copyright: ę 2003 by the American Historical Association. Compiled by Debbie Ann Doyle and Brandon Schneider. Format by Chris Hale.

 
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