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Piracy and the Law

From time immemorial, piracy has been referred to as the third oldest profession and inextricably linked to law. During the 16th, 17th and 18th centuries, preservation and expansion of commerce between merchants of different sovereign nations required a workable system of law. Much of the development of the common law of England, the civil law of Rome, admiralty and international law was in response to the disruption of commerce by pirates acting both on their own behalf against all shipping and under license of a sovereign state and preying on foreign ships. Legally, the latter were designated as privateers pursuant to letters of marque and reprisal known as commissions and were not to be treated as pirates — that is, not summarily executed. Among the most famous pirates were Sir Richard Grenville, an Elizabethan lawyer, member of the Inner Temple and gallant captain of the HMS Revenge, whose last sea battle with the Spanish fleet was immortalized by Alfred Tennyson; and Sir Henry Mainwaring, a lawyer of the Inner Temple, vice admiral, member of Parliament, author of Discourse of Pirates, and scourge of Spanish shipping. Mainwaring eventually was pardoned under the Great Seal of England on the grounds that he “had committed no great wrong.” In 1787, the practice of issuing commissions found its way into the U.S. Constitution under Article 1, Section 8, Clause 11, which provides that Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. In 1856, the major world powers signed the Declaration of Paris, which abolished letters of marque and reprisal, and with it the end of privateers but not pirates, whose trepidations continue to this day and have involved such historical luminaries as Julius Caesar and Miguel de Cervantes. In 78 B.C. a young, arrogant Julius Caesar, who had just been banished from Italy by the dictator Sulla, was captured off the island of Pharmacusa by pirates while sailing the Aegean Sea.

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Ransom was initially set at 3,000 pounds. Upon hearing this, Caesar responded that if the pirates knew their business they would realize that he was worth at least four times that amount. Thereupon, the ransom was set at 12,000 pounds. Thirty-eight days later the ransom was paid and Caesar given his freedom. He immediately borrowed four warships and 500 soldiers, sailed to the island of Pharmacusa, captured 350 drunken pirates, recovered the ransom, and executed the whole lot of them. In 1575 Miguel de Cervantes, while on a voyage from Naples to Spain, was captured by pirates and sold into slavery at Algiers. He languished five years in Moorish prisons before the ransom was paid. Had he not survived, the world would have been deprived of his novel Don Quixote, the first part of which was written in 1605. In the College of Law library, all this and more can be found in The History of Piracy, written by Philip Gosse and in The Law of Piracy, written by Professor Alfred P. Rubin of the Fletcher School of Law and Diplomacy and published by the Naval War College Press as Volume 63 of the U.S. Naval War College International Law Studies.

Willamette Lawyer | Spring 2009 • Vol. IX, No. 1  

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