An excellent addition to any collection of piracy material and an important contribution to colonial laws concerning America: Richard West’s substantial manuscript opinion was instrumental in the permanent establishment of colonial courts for the trying of pirates.
Addressed to the Lords Commissioners of Trade and Plantations, Attorney-General Richard West (c.1691-1726) gives his legal opinion on the matter of trying and executing pirates abroad, especially in the Americas. It was area of law that needed addressing. Previously, the 1536 “Offences at Sea Act” demanded that anyone accused of piracy be tried in London through the Admiralty courts. This proved increasingly expensive through the Golden Age of Piracy (the long version: 1650-1730, the short: 1716-1726) in the Caribbean.
Matters were made worse when in 1684, “most colonial trials came to a halt when the English government decided that the colonies did not have jurisdiction to try any piracy cases … Colonial governments were interested in prosecuting pirates. But not if they had to foot the bill. Consequently, when they captured pirates, they often just let them go. The problem that this criminal ‘catch and release’ policy created intensified in the late seventeenth and early eighteenth centuries when a new wave of watery bandits took to the sea” (Leeson). Namely, the rise of piracy in the Red Sea which further stretched the Admiralty’s resources.
The 1700 “Act for the More Effectual Suppression of Piracy” acknowledged this: “it hath been found by Experience, 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 and Charges in sending them into England to be tried within the Realm, as the said Statute directs, insomuch that many idle and profligate Persons have been thereby encouraged to turn Pirates, and betake themselves to that sort of wicked Life, trusting that they shall not, or at least cannot easily, be questioned for such their Piracies and Robberies, by reason of the great Trouble and Expence that will necessarily fall upon such as shall attempt to apprehend and prosecute them for the same …”
Although the act allowed for the creation of colonial courts, it expired after seven years. It was repeatedly renewed following the War of Spanish Succession (1701-1714). However, Richard West’s opinion was instrumental in making these courts permanent. He cites the opinions of both Mr Smith, advocate for the Court of Admiralty in New England and the representation of Mr Menzies, judge of Admiralty in the Massachusetts Bay concerning the trial of John Oultol and Cornelius Waldall.
After some deliberation, West concludes: “The lords of the admiralty pray that his Majesty would be pleased to order the governors to restrain the provincial judges from interrupting the proceedings of the courts of admiralty by which, if they mean that the judges should be hindered from granting prohibitions, I cannot conceive how they can be relieved in the manner they propose; for if the prohibitions are legally granted no order can authorize him to hinder them, and if they are not, the proper remedy is by the appeal of the party concerned. But to conclude, if your Lordships, upon inquiry into the fact, should find, as in all probability the fact as to New England is, that the people there do under a pretence of law attempt to disturb and, perhaps, to banish from that province the due exercise of an admiralty jurisdiction, derived more immediately from the crown than that of their own courts, I am humbly of opinion that the properest remedy the admiralty can apply for, is, that a bill may be brought into parliament next session for that purpose, by which the manner of trying piracies, and the exercise of the admiralty jurisdiction for the future, may be established and reduced to certainty.”
The subsequent “Act for the More Effectual Suppression of Piracy,” also created an additional offence, that of aiding and abetting piracy: “Be it enacted by the Authority aforesaid, That all and every Person and Persons whatsoever, who shall either on the Land, or upon the Seas, knowingly or wittingly set forth any Pirate, or aid and assist, or maintain, procure, command, counsel or devise any Person or Persons whatsoever, to do or commit any Piracies or Robberies upon the Seas… [or who] receive, entertain or conceal any such Pirate or Robber, or receive or take into his Custody any Ship, Vessel, Goods or Chattels, which have been by any such Pirate or Robber piratically and feloniously taken… are hereby likewise declared… to be accessary to such Piracy and Robbery and shall and may be adjudged as the Principals of such Piracies and Robberies.”
Established in 1696, the Lord Commissioners of Trade and Plantations comprised the Lord Chancellor or Lord Keeper, Lord President of the Council, Lord Privy Seal, Lord Treasurer or First Lord of the Treasury, Lord Admiral or First Lord of the Admiralty, Secretary of State, and Chancellor of the Exchequer. To these were added the Bishop of London in 1702.
The passing of the act had an immediate and important impact in reducing piracy.
Provenance: Sir Thomas Phillips collection, ms 31912.
Leeson, P.T. “Rationality, Pirates, and The Law: A Retrospective” in American University Law Review, Vol. 59, No. 5 (2010), p. 1221; Norton, M., “Classification and Coercion: The Destruction of Piracy in the English Maritime System” in American Journal of Sociology, Vol. 119, No. 6 (May, 2014), pp.1537-1575.
