Pirates and the Law

We all know that pirates were law-breakers. That’s kind of a definition of the job. But what were the laws, anyway? What was the British legal system like in 1715?

The beginning of this answer is: A lot different than it is today.

British law was undergoing a rather radical change at the time, from a medieval system primarily designed to punish people who stepped outside the system, to a system designed to deter crimes against property.

This change was driven by the rise in what we would call the upper middle class. Unlike previous people with money, their wealth was not tied up in land, but in property such as homes, carriages, artwork and fine clothing. These people wanted to protect their possessions, and also their business dealings.

Because of this, England set out on a course of new laws designed to deter undesirable behavior. Crimes like shoplifting, robbing a house or rioting were punishable by death. The list of crimes that fell under this category grew by leaps and bounds, from about 26 during the Golden Age or Piracy to well over two hundred by the mid 1700’s.

The laws of the time are today referred to as “The Bloody Code” though they were never called this while they were in force.

The goal – to paraphrase a quote from the time – was not to punish the stealing of horses but to prevent the stealing of horses.

Today we wouldn’t understand many of the distinctions in these laws. For instance, it was legal for a nobleman to rape a common woman, on the theory that she would necessarily be so flattered at the possibility of bearing a noble child that she was not capable of resisting.

A commoner raping a noblewoman, however, was a crime against the woman’s family.

It was perfectly legal to beat a person nearly to death, so long as they were not permanently disabled or killed. But it was illegal to damage their clothing by cutting it, as this was property damage. Women were not legally allowed to own property. Counterfeiting was illegal for both men and women, but men were hanged for the crime, while women were burned alive.  These are only a few examples, but you get the drift.

Similarly, the court proceedings would not be recognized by modern folks, especially Americans. The job that Americans refer to as “lawyer” was divided between a solicitor (who represented the client in court) and a barrister (who was hired by the client and researched the law).

People who were arrested did not get out on bail. They were kept in chains and locked up in prison, where they were kept pending trial. If they did not have much money, or friends outside to help them, they did not receive food or drink above the bare necessities for survival. They slept on the floor in piles of straw, and were not provided a change of clothing, or even wash water. Trial could be expected to come within a few weeks, but the accused would be filthy, bedraggled and much thinner when standing before the judge. It would be easy to convict such a person.

Nor were the accused given any information about the case or their legal rights, unless they or some friend could afford to hire legal representation. This put the poor at a severe disadvantage. But the laws were written specifically for the rich, anyway. God, it was believed, had already decided that the rich were better and more important people than the poor. That was why they were rich. God had blessed them.  

Bringing a court case was more difficult for a poor person as well. The burden of proving the case was entirely on them. There were no police departments yet. Instead, men similar to private detectives could be hired – for a price – to investigate, gather evidence and bring the accused to be locked up. These men were called thief-takers. Though their fees were not prohibitive to the well-to-do, they could destroy a poor family.

Thief-takers were also very prone to corruption. Since they were paid to gather evidence, they could accuse an innocent person and be believed. This in turn could lead to blackmail, protection rackets and perjury. The system was ripe for abuse.

Even bringing a case to court was expensive. The person bringing the case needed to pay the court costs up front, and this kind of money was out of the reach of the poor. If a rich person cheated on a contract or took the property of a poor person, it would be almost impossible for the poor person to raise enough money to hire legal help, have papers served, and pay the necessary court costs. The rich were safe.

Punishments, besides hanging, were also not what modern people would expect. Instead, the system looked more like something one could imagine in a radical Islamist state. People could be burned at the stake, hanged, or skinned and cut into pieces. For less severe crimes, the punishment might be lashes with a whip, strokes with a rod, or even being tied to the back side of a cart and dragged through town while being beaten by a gang of men with various instruments. Simply being locked up was not an option.

Even “the stocks”, that cute little punishment that we today associate with the Puritans, was much more harsh than it seems. Yes, the punishment was to be confined by having the head and hands, or maybe the head hands and feet, immobilized by a wooden device. What we don’t think of was that, while confined, the person could have rocks thrown at them, or rotten fruit, or dead animals. Hot oil could be poured on them. In fact, any abuse that an angry or bored populace could dish out was okay.

Once again, the rich got off easier. Their families could afford to hire body guards for the event.

Oh, and piracy? The date when piracy became illegal is not clear, but was a death-penalty crime since long before the Golden Age. Piracy broke both the old laws (being outside the social structure) and the new ones (stealing and destroying property, and committing murder). Hanging was the penalty, but further rituals grew up around the ritual of punishing pirates. In England, it was traditional to hang a pirate at low tide, then bind the dead body to a pole and let 3 tides wash over it. After this, the body would either be given to a medical school for dissection or covered in tar, bound with iron bands and hung up as a warning to others.

Piracy was one of the last death penalties still on England’s law books. The death penalty for piracy, along with high treason, was reduced to life imprisonment in 1998.