Benton, Lauren. "Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism". Comparative Studies in Society and History, Vol.47, No.4 (2005): 700-724.

Benton, Lauren. "Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism". Comparative Studies in Society and History, Vol.47, No.4 (2005): 700-724.

• European imperial expansion was marked by expansion of systems of limited influence rather than direct control over sovereignty, often through the limited application of certain legal practices or the control over narrow bands of territory that influenced the other 'possessions'. This is especially true for maritime control, since no nation could expect to control the sea at this time (701-702).
• European impositions on trade in the India Ocean were not new inventions, but carry-overs from older practices in the Mediterranean and West Indies. The sales of permits and permission slips by maritime empires in particular came from practices of licensing vessels in the Eastern Mediterranean and Caribbean (702).
• This expansion of practices used in the Atlantic Ocean meant that there were almost identical legal regimes enforced by European empires between these oceans, leaving the boundary between them unclear and undemarcated to most sailors (703).
• Instead of being based on geographic boundaries, the terms used by cartographers were shaped by regional trading patterns. Instead of labeling oceans, maps split areas into smaller seas based on trade. For this reason, the Caribbean was separate and the Atlantic stretched from Namibia to Madagascar to reflect slaving practices (703).
• All Western European navies instituted similar legal regimes on board ships during this period. The ship captain had supreme legal and judicial authority on the oceans, as given to him by the Crown, and has also responsible for the governance of all military installations created by that fleet. In this way, ships were vectors of order and state control (704).
• Two legal traditions informed European conceptions of piracy:
• Alberico Gentili, an Italian jurist at Oxford University in the 1580s, wrote that piracy is defined as any maritime robbery occurring without the permission of a state. Writers in this tradition further argued that labeling a state as piratical did not make it so, nor deprive that state of legitimacy. Furthermore, states could send their ships to raid vessels without it constituting piracy (705).
• The other tradition comes from Hugo Grotius's writings in the 1620s, who claimed that state support was not at issue. Instead the act of raiding or capturing another ship was always piracy outside of a state of active warfare. Since private individuals could not by definition by 'at war', their actions were always illegal (705-706).
• The commonality of privateers in imperial navies during this time blurred the definition of pirate, as individuals commissioned for licensed raiding during warfare would frequently turn back to piracy after the conflict. This led to pirates modifying their behavior to attempt to argue that they acted within the law and their bounty represented legal privateering during a time of war rather than illegal piracy (706-710).
• The trial of pirates was highly politicized and depended on the political pressure for the interpretation of various laws in different ways. The trial of William Kidd in 1701 provides a good example, as his legally dubious activities really only resulted in conviction because one of his targets had connections in the Mughal court, which placed pressure on their British subjects to have him brought to justice (708).
• The lack of clear legal order on the Indian Ocean during this time is demonstrated by the behavior of merchant vessels. Due to overlapping jurisdictions and frequent warfare, merchant ships carried multiple flags and paperwork for all known powers in that area, hedging their bets to obey whatever law has applied at that time (708, 714).
• The system of maritime regulation in the Indian Ocean was created by the Portuguese based on the trading system in the Mediterranean, and required all Asian shipping to purchase a cartaz, issued at the port of call that required the ship to pay customs duties to some Portuguese fort -- and receive a receipt -- on the way to its destination (713).
• This system of trade regime based on passes was largely adopted by the English, French, and Nederlandish imperial governments by the early 17th Century (713).
• The Mughal Empire during the 1600s very quickly realized that European maritime empires could be manipulated to its advantage. In particular during a Maratha uprising in the 1660s, the Mughal put pressure on friendly European merchant powers to destroy trade in Maratha ports, helping the Mughals strangle the rebellion (714).
• Later the Mughals would imprison European traders, impose embargoes, and bombard European fleets to force the Europeans into reigning in the actions of European privateers attacking Indian shipping. The weakness of Europeans outside of the maritime realm made them vulnerable to this kind of pressure (714-715).
• Despite being an imperial project, the political pressure of the Mughals really prompted Britain in particular to start actively combating all forms of piracy in the Indian Ocean (715).
• Legality over the high seas was heavily disputed by the mid-1600s within the British Empire, as colonial administrations railed against the powers of admiralty officials on land, but struggled to deal with many associated issues of piracy. Accordingly, piracy remained an issue of admiralty courts, although jurisdictions varied, with different colonies assigning different issues to admiralty courts on the basis of localized importance (716-717).
• The division of these jurisdictions between admiralty and civil courts was highly localized and influenced by local politics, in particular the demands in Jamaica and New York for piracy to be tried in civil courts, largely to prevent convictions due to the influence of pirate's local patrons in those areas (717-718).
• The issue of impunity for pirates due to local sympathies led to a number of centralized measures by the English government to impose stricter procedure. In 1673, although later repealed, all pirates had to be tried by the admiralty, and in 1700, special courts were created for dealing with pirates (718).
• The initiative to suppress piracy in the late 1600s led to the divergence of Atlantic and Indian Ocean legal regimes in the English Empire, as crown measures in the Caribbean did not apply in the East India Company's jurisdiction (718-719).
• A new wave of piracy erupted following the Peace of Utrecht in 1713, as former privateers dependent on the decade of European war preceding it now turned towards open piracy. The English government responded with harsher measures, such as public hangings of pirates in the Caribbean, although the older, more lax, legal regimes sometimes remained during this period, especially outside the Caribbean (719-720).
• "Even when not responding directly to colonial politics, European legal institutions and ideas about global order were also being influenced by remote politics and the strategies of unlikely legal actors" (723).