More about pirates: why we no longer “hang them high”

Summary:  This is the second in a series about pirates.  The first chapter described modern day piracy, and why our “catch and release” response makes it an attractive low-risk, high-return business.  This describes the legal basis for their capture, trial, and punishment.  Links to the other chapters appear at the end.

Journalist Bret Stephens asks “Why Don’t We Hang Pirates Anymore?” (op-ed in the Wall Street Journal, 25 November 2008).  His answers:

  1. No controlling legal authority, providing a basis on which to fight, capture, try, and punish pirates.
  2. International law (e.g., the Law of the Sea Convention) makes action against pirates difficult.
  3. UN authorization is necessary for most effective actions against pirates, such as attacking their bases.

All of these things are true, but they secondary factors (discussed in the next chapter).  The vast majority of articles about piracy concentrate on these minor things.  This post will attempt a clearer and more comprehensive explanation.

Pirates were hung for two reasons.

  1. They routinely killed people during the course of their raiding. 
  2. During their years of infamy in the 17th and early 18th century, capital punishment was routine for many crimes. 

The last point is widely ignored in discussions of piracy, such as Stephen’s.  Consider the laws of England.

In the years after 1660 the number of offences carrying the death penalty increased enormously, from about 50, to 160 by 1750 and to 288 by 1815. You could be hanged for stealing goods worth 5 shillings (25p), stealing from a shipwreck, pilfering from a Naval Dockyard, damaging Westminster Bridge, impersonating a Chelsea Pensioner or cutting down a young tree. This series of laws was called (later) “The Bloody Code.” (source: UK National Archives)

In 1769 the great jurist William Blackstone wrote in his Commentaries on the Laws of England (Book IV, chapter 1;  source, Wikipedia entry):

YET, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than 150 have been declared by act of Parliament to be felonies without benefit of clergy ; or, in other words, to be worthy of instant death.

Conclusion:  we do not hang pirates today because:

  1. Modern pirates seldom kill passengers or crew, or commit the other crimes for which their predecessors were infamous (e.g., rape, ransom).  See these Wikipedia lists:  piracy, somali pirates.
  2. Developed nations today have few or no capital crimes.  Theft is seldom one, and rarely for first-time offenses.

Modern piracy is a powerful demonstration of what Martin van Creveld calls “non-trinitiarian conflict” — often (IMO misleadingly) called 4th generation warfare.  In this the moral dimension becomes decisive.  As in what was one of the most despised and fircely punished form of crime becomes a low-risk, profitable enterprise.  The ferocity — murder, rape, pillage – are unnecessary trappings to the profitable core activity of piracy.

But pirates are enemies of all humanity (hostis humani generis)!

Stephens — like a thousand others writing about pirates — cites Cicero’s immortal words about pirates.  And its Latin, so it must be true.  But it is probably not true.  As explained in this excerpt from Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, Joshua Michael Goodwin, Vanderbilt Journal of Transnational Law, Vol. 39, 2006 (source):

The Romans did not use the phrase hostis humani generis. The phrase may be a shortening of a phrase used by Cicero. He claimed that pirates were the common enemies of all communities.   But the pirates that Cicero was referring to were not the same as the pirates of the 17th century and today.  As noted above, the Romans used their word for pirate to describe a community who, without formally declaring war before attacking, practiced what would today be considered piracy or land-based banditry.  Cicero was not necessarily talking about pirates like Edward Teach.

This is not to say that the Romans may not have considered pirates the enemies of all mankind. It only says that they never used the phrase hostis humani generis to describe pirates. When the Romans thought of piracy, they may have considered the pirates to be “enemies of all mankind” because they never declared war before they attacked.  As shown earlier, this failure to declare war formally before attacking is why the Romans felt the pirate communities were in a constant and permanent state of war.

From this, it is clear that the concept of hostis humani generis cannot be said to be of Roman origin. Further, the Romans, while they may have considered pirates the enemies of all mankind, were not thinking necessarily of pirates like Blackbeard but of communities whose way of life conflicted with the Roman way of life. They were also thinking of people who plundered on both land and sea.

In 1612, Gentili wrote about the problem of piracy and how states may deal with pirates. He did not use the phrase hostis humani generis to describe pirates, but he did speak of pirates as the “common enemies of all mankind” using language similar to Cicero.   Unlike Cicero and the Romans, Gentili felt that a state of war could not exist with pirates and brigands because, even though they may act as pirates, individuals are still the citizens of a state. As citizens, they are still subject to the laws of their state of citizenship.  Therefore, pirates do not come under the laws of war and states need not treat pirates in accord with the laws of war because only sovereigns fall under the laws of war.   By engaging in piracy, pirates do not free themselves from the law of their country.

… England did not initially share Gentili’s view that pirates were the common enemy of mankind and anyone had the right to seize them. Lord Coke {1552-1634} was the first to use the phrase hostis humani generis to describe pirates.  Originally, according to Lord Coke, piracy was a form of treason. Coke does not cite to another source for this phrase, though his use of the Latin phrase in an English text suggests that he was borrowing it from some older source with some speculating that it was from Cicero.   This would be a shortening of the passage by Cicero mentioned above.  Coke declared that piracy was a form of treason because pirates were hostis humani generis.  Unfortunately, he does not explain why the pirates are hostis humani generis or why this makes piracy treason.

… Within a century, England would replace the view of piracy as a form of treason, limited to instances where there was a connection to England, with something similar to universal jurisdiction.

A brief look at the legal basis for capture, trial, and punishment of pirates

1.  The US Constitution.  Article I, section 8 says:

Congress shall have power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.

2.  Under U.S. Law, there is already authority for Civilian Mariners to defend against pirates and seize pirated vessels. 

33 U.S.C. 383: Resistance of pirates by merchant vessels (source)

The commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.

3.  U.N. Convention on the Law of the Sea (UNCLOS)

Part VII – High Seas; Section One — General Provisions; articles 100 – 107 (source):

  • 100.  Duty to cooperate in the repression of piracy
  • 101.  Definition of piracy
  • 102.  Piracy by a warship, government ship or government aircraft whose crew has mutinied
  • 103 . Definition of a pirate ship or aircraft
  • 104.  Retention or loss of the nationality of a pirate ship or aircraft
  • 105.  Seizure of a pirate ship or aircraft
  • 106.  Liability for seizure without adequate grounds
  • 107.  Ships and aircraft which are entitled to seize on account of piracy

The key section is 105, giving broad authority to States for seizure and trial of pirates.  However Section 106 says:

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

What are “adequate grounds”?  Who gets to decide, and esp determine any resulting liabilities?

The US has not ratified this treaty.  See the Wikipedia entry for background and additional links.

An interview with a pirate

American Morning, CNN, 26 November 2008 (transcript) — Scroll to the section by David McKenzie.  Excerpt: 

BOYAH, SOMALIA PIRATE (THROUGH TRANSLATOR): Since the ocean is our government, we go into the deep ocean and hijack unarmed cargo ships. That is what forced us. There is no law that allows us to hijack traveling ships. But what motivates us is life, since we are the people who used to work at sea.

MCKENZIE: Many of these pirates used to be fishermen, who have now traded their nets for their weapons — a subsistence way of life for the high life. Pirates have the best houses, the fanciest cars, the prettiest women, say the people here.

The pirate haven is on the coastline of Puntland, part of Somalia. Piracy has made Eyl a boomtown. In a territory of extreme poverty, the Puntlandgovernment is ineffective and widely considered corrupt. With the government unable to improve lives, piracy begins to look like an attractive option.

BOYAH (THROUGH TRANSLATOR): We work together and our ranks grow because there is more hunger and more skills. That is what causes more people to join piracy. Piracy is growing faster, but it is not something that is lessening. The world cannot do anything about it.

Other interesting articles about modern piracy

  1. The Law of Piracy in Popular Culture“, Jonathan M. Gutoff, Journal of Maritime Law and Commerce, October 2000. 
  2. Blackwater Plans Effort Against Piracy“, Wall Street Journal, 3 December 2008

For more information from the FM site

Reference pages about other topics appear on the right side menu bar, including the Naval warfare and strategy reference page.

Posts on the FM site about pirates:

  1. All about Pirates!, 12 December 2008
  2. More about pirates: why we no longer “hang them high”, 5 January 2009
  3. A Piracy SitRep, 12 May 2009
  4. What is this “justice” that war-loving Americans speak of?, 31 December 2009
  5. More about those pirate demons in Somalia, 2 January 2009
  6. The real pirates sailing the seas, in whom we have no interest and from which we will suffer massive damage, 4 January 2010
  7. New research about pirates!, 3 March 2010
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10 thoughts on “More about pirates: why we no longer “hang them high”

  1. This is not all, Article I, Section 8, paragraph 11 of the U.S. Constitution authorizes Congress to “grant Letters of Marque and Reprisal, and make rules concerning captures on land and water.”

    To simplify things only a bit, a letter of marque or of reprisal is essentially a license to commit lawful piracy. Although fallen into disuse, such letters were common during the early years of the Republic. As Wikipedia notes “the the difference between a privateer and a pirate was a subtle (often invisible) one.”

    Privateers/Pirates often had a heroic image. One such group was the Dutch Sea Beggars, who played a crucial role in achieving Dutch independence against Spain in the late 16th and early 17th centuries.
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    Fabius Maximus replies: Letters of Marque (and their many variants) play a major role in the history of pirates in their golden era of the 17th and early 18th centuries, often ignored in general audience accounts. “Authorized” privateers played a large role in our War of Independence, far larger than that of the tiny US Navy, by damaging British commerce. But this is all of little relevance to modern piracy.

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  2. Legally speaking, many of these statutes were threats rather than a predictor of actual punishment imposed. At least by the eighteen hundreds, the number of capital executions in England was quite low in comparison to those threatened with such punishment.
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    Fabius Maximus replies: That’s right, but somewhat misleading on two counts.

    First, many pirates were hanged, as seen by looking at bios of the most infamous: Charles Low, Charles Vane, John Rackham (plus his entire crew, except for the two female pirates). Others avoided hanging by fighting to death, like Blackbeard and Bartholomew Roberts (no point in surrendering to be hanged). The UK peak in executions was (I believe) in the 17th century — which includes much of the “golden age” of piracy (1660 – 1720).

    You correctly note that executions declined after the 17th century, and functioned primarily as a threat (in terms of the overall society). The use of capital punishment decreased during the 18th century. The National Archives article I cited gives the number of people hanged per year in London:
    …..Early 17th century: 150
    …..Early 18th century: 20

    Second and more importantly: my point was that capital punishment was more frequent — more widely applied — then compared with now. Most developed nations do not even have capital punishment. Developed nations that do use it infrequently (42 in the US during 2007, with a population far far larger than early 18th century London).

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  3. One of the reasons that punishments were then both so draconian yet to few was that law enforcement was so ineffective.

    Highwaymen were hung in gibbets precisely because they were so rarely caught. A colorful description would be David Brandon’s Stand and Deliver!: A History of Highway Roberry.

    Another colorful history is The Elizxabethan Underworld by Gamini Salgado:

    The Elizabethan world, so often recalled for its riotous love of life and bawdy sense of humour, was also a world of contrasts. The rich appeared enormously rich, indulging in extravagant luxuries, while the poor often languished in unthinkable squalour, turning to thievery and begging in order to survive. It is this complex network of beggars and thieves, vagabonds and rogues that inhabited the colourful underworld society of London’s taverns, brothels and gambling dens that Salgado here investigates. Alongside these were those who sought their victims at the country fair and along treacherous highways. Gamini Salgado also describes those others who were part of the underworld scene; strolling players and minstrels, witches, alchemists and astrologers. He also examines the measures taken against those who were seen to be in need of correction of reform. The book contains sixty contemporary illustrations from manuscripts and pamphlets, bringing to life this fascinating sector of Elizabethan society.

    The classic sociological study of pirates, which I have not yet read, is Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates and the Anglo-American Maritime World, 1700 – 1750 by Marcus Rediker
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    Fabius Maximus replies: This is a bit off-topic, but still a powerful point! From Wikipedia:

    The first police force in the modern sense was created by the government of King Louis XIV in 1667 to police the city of Paris, then the largest city of Europe and considered the most dangerous European city.

    … In the UK the development of police forces was much slower than in the rest of Europe. … Prior to the 19th century, the only official use of the word “police” recorded in the UK was the appointment of Commissioners of Police for Scotland in 1714 and the creation of the Marine Police in 1798 (set up to protect merchandise at the Port of London).

    On June 30, 1800, the authorities of Glasgow, Scotland successfully petitioned the Government to pass the Glasgow Police Act establishing the City of Glasgow Police. … In London, there existed watchmen hired to guard the streets at night since 1663, the first paid law enforcement body in the country, augmenting the force of unpaid constables. On September 29, 1829, the Metropolitan Police Act was passed by Parliament, allowing Sir Robert Peel, the then home secretary, to found the London Metropolitan Police.

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  4. Man does nothing without an incentive, and the incentive is rarely cash alone in the first wave of any social movement he undertakes. I think the piracy of the early 21st century is much like the Mafia of 1860’s: the business model is being developed but the incentive is not yet purely profit. There is a lot of hometown pride, tribalism, and mutual protection society to it. Organized crime groups need the people the same way Maoist guerrillas did, so it pays for them to keep at least some focus on these values. Eventually, the 2nd wave starts, and a leader arises in the organization who merely exploits the symbols of family and tribe to increase the margin. At that point, the group must rule the locals by terror, since they no longer have the support of the people. The turning point for the US Mafia was the St. Valentines Day Massacre, at which point the public found them a menence rather than daring highway men. However, by that time the mafia had an extremely effective business model, and police action only drove it under ground, not out of existence.

    We haven’t reached the St. Valentine’s Day Massacre of modern piracy, so this is the best time to fight it. A good start would be improving the economic conditions of the places where piracy is the worst. A good next step would be allowing merchant ships to defend themselves. Either is expensive, but a global criminal organization with piracy as the entry level will most likely cost much, much more.

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  5. We make the mistake of playing by Barney The Dinosaur rules in the midst of Jurasic Park. It reminds me of a teacher who keeps giving warnings to a recalcitrant student who considers his high school a jail and would rather be setting the teacher on fire with his Bic lighter than copying biology notes.

    The West assumes that the people performing these acts of piracy are doing so out of a sense of desperate ennui. For too ong the Western Ebeneezer Scrooges haven’t given Tiny Tim from Somalia quite enough porridge too quiet that rumbling tummy. What’s the poor, little raggamuffin to do except take it out on our commercial shipping fleets?

    The real motivation behind this problem is two-fold. One, these people subscribe to a system of beliefs that views people who live in the West as inherently evil and worthy of miserable death. Killing Westerners may not always prove to be easy or fun; but their spiritual authorities ashore these pirates thatt hey will be rewarded once they reach a glorious Thereafter.

    Secondly, they behave this way because they can and on most days, it makes for a rewarding and stimulating career choice. Willie Sutton once corrected an urban legend about why he went around robbing banks. He didn’t say he did because that was where the money was. What he really said follows below…

    Why did I rob banks? Because I enjoyed it. I loved it. I was more alive when I was inside a bank, robbing it, than at any other time in my life. I enjoyed everything about it so much that one or two weeks later I’d be out looking for the next job. But to me the money was the chips, that’s all. Willie Sutton source: Wikipedia

    So even if Somalians were well-fed, economically prosperous and had a curtting-edge navy, they’d probably just employ that fleet for piracy. Thus, I hypothesize, that our failure to hang pirates is based upon a misapprehension of why they are pirates.
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    Fabius Maximus replies: Do you have evidence for any of this? Assuming that they are motivated by profit and risk explains the data, and is a far more simple and robust explanation. Also, the distinguishing feature of their piracy – the primary point of this post — is that they are not “killing westerners.”

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  6. Knight_of_the_Mind said:

    [T]hese people subscribe to a system of beliefs that views people who live in the West as inherently evil and worthy of miserable death. Killing Westerners may not always prove to be easy or fun; but their spiritual authorities ashore these pirates thatt hey will be rewarded once they reach a glorious Thereafter.

    There’s no indication any of this is motivated by religious beliefs or a desire to kill infidels. Indeed, given the potential for mayhem the death toll has bee surprisingly low.

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  7. The reason we do nothing about pirates is that the Somalis aren’t acting according to ‘the script.’ That is if the Iranians were capturing tankers in the straights, we’d be all over it. Somalia, well, ooh, what do we do! We don’t know! This is so confusing.

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  8. Update: valuable article about piracy

    The Overstated Threat“, Jason R. Zalsky (Commander, USN, retired), Proceedings, December 2008 — “Pirates holding the merchant vessel Faina have been characterized as terrorists especially since the ship’s cargo consists of T-72 tanks and related military equipment. The bottom line, however, is that all the pirates want is money.”

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