Abstract
This article uses legal and literary accounts of Francis Drake’s 16th-century depredations to consider the historical figure of the pirate in legal thought. Against the transhistorical figure of universal enmity of many international legal accounts, the article argues that the 16th-century pirate was a fundamentally contested figure reflecting contrasting juridical-political visions of world order. In the 16th-century Spanish imagination, piratical enmity, rooted in confessional identity, posed a threat to a universalising res publica Christiana and the juridico-political structure of Christendom. The emergence of a nascent English commercial imperialism challenging Iberian dominance in the Americas undergirded a quite different legal and literary piratical identity, Drake not heretical foe but vanguard of English imperial aspirations.
Early on the afternoon of March 1, 1579, a cry came from the lookout at the masthead of the Golden Hind. John Drake, a younger cousin of the ship’s commander, Francis Drake, had caught sight of the Spanish treasure ship the Nuestra Señora de la Concepción. Under the command of Captain San Juan de Antón, it was bound for Panama, heavily laden with silver from the Potosí mines in Peru. Slowing his own vessel so as not to startle the Spanish, Drake had his crew trail ropes and cables behind the Hind. As it drew closer, there was little alarm amongst the Spanish. Depredation, while common in the Caribbean and Atlantic, was relatively unheard of in Pacific waters. In fact, Spanish ships on the Pacific leg of the silver train were rarely armed. Yet, as the Hind slowly flanked the Spanish ship, a cry rang out: “Strike sail in the name of the Queen of England!” 1 A volley of artillery fire brought down the Concepción’s mizen mast and before long Drake’s men had scrambled aboard the Spanish prey. The treasure found on the Spanish ship was greater than anything taken thus far on Drake’s voyage: “we found in her great riches, as jewels and precious stones, thirteen chests full of royals of plate [silver reales], fourscore pound weight [80 pounds] of gold, and six and twenty ton of silver”. 2 So voluminous was the cargo that it took six days to transfer the cargo to the Hind, after which the Concepción was set free. 3
If the Nuestra Señora de la Concepción was the richest prize taken by Drake on his circumnavigation of the globe, it was by no means the only. He had set out from Plymouth on November 15, 1577 aboard the Pelican, accompanied by a further four vessels. In January, a Portuguese merchant ship, the Santa Maria, was captured off the African coast near the Cape Verde islands. Crossing the Atlantic, the fleet made land in Brazil and followed the coast south to Patagonia. By September, Drake had passed through the Magellan Strait, continuing into the Pacific in the Pelican, now renamed the Golden Hind. Sailing north, he attacked Spanish ports and ships along the Chilean coast, sacking Valparaiso, the port of Santiago, on December 5, 1578. At Arica, the first port on the treasure route which took silver from Potosí to Panama, Nombre de Dios, and ultimately Spain, Drake took two further prizes. 4 Continuing north, Drake raided Callao, the port of Lima, where he learned of the Nuestra Señora de la Concepción, heavily laden with silver and recently departed for Panama. Several weeks later, the younger Drake sighted the Spanish vessel off Cape San Francisco in what is now Colombia. After securing his prize, Drake continued north before setting west across the Pacific, returning to England by way of the Cape of Good Hope nearly three years after departing Plymouth. 5 The booty carried back to England by Drake was significant—Elizabeth’s share alone was enough, John Maynard Keynes observed, to pay off the entirety of her foreign debt. 6
Upon his triumphant return, Drake was met with enthusiasm and praise. The queen feasted aboard the Golden Hind, consecrating the ship “with great ceremonie, pompe, and magnificence, eternally to be remembered” and, in 1581, knighting Drake. 7 Unsurprisingly, the Spanish were unimpressed. Drake’s raids on Spanish vessels and ports outraged the Spanish king, Philip II: Drake was a pirate and, the king’s ambassador in London, Bernadino Mendoza, demanded, should be punished accordingly. Wars, Mendoza warned the English queen, had started with less provocation. 8
This article uses Drake’s depredations as a starting point to consider the historical figure of the pirate in international legal thought. Today, the pirate is a central figure in the international legal imagination. Interest was renewed most recently in reaction to the dramatic rise of maritime violence around the Horn of Africa in the first two decades of the new century. “Pirates are not ordinary criminals”, a typical intervention holds; 9 they are exceptional, “enemies of civilization itself” 10 and “enemies of the human race”. 11 Their enmity is universal, the pirate as hostis humani generis, the enemy of all humanity, a paradigmatic example of enmity demanding extirpation, opposed to all and demanding perfunctory annihilation by all.
This figure, and the discourses about it, are rooted in a tradition of international legal thought that regularly draws on, and reproduces, the pirate as an archetypal figure of enmity, the model for the treatment of other proscribed forms of violence: the slave trader, torturer, war criminal, terrorist, and so on. The article begins by briefly showing how this figure operates in contemporary legal discourse. Looking back to Drake and the 16th century, the article then seeks to unsettle the consensus around the pirate as a singular figure of enmity. It argues that the pirate was, at least at this earlier juncture, a fundamentally contested figure, its enmity subjective and rooted in a specific social and political context. Maritime depredation and the pirate, the article suggests, were in this period evaluated against a background of religious enmity and contrasting juridical-political visions of world order. Using Drake’s depredations as a starting point, it considers the contrasting Spanish and English attitudes towards piracy in the late-16th century. It begins by reading contemporaneous Spanish legal and literary accounts which present Drake as a pirate, a figure, the article shows, not only associated with illegitimate depredation, but, as with its counterpart in the Mediterranean, epitomising religious enmity and embodying the confrontation between two juridical-political orders. As in Europe, the Spanish state cast its imperial ambitions in religious terms, as it did its geopolitical rivals—the Ottomans, but so too now newly emerging English and Dutch imperial formations. In the New World, these challengers sought to rival Spanish hegemony over the extraction of wealth, a challenge cast in ideological terms as a threat to the Iberians’ universal Christian mission. The article then turns to contemporaneous English depictions of Drake, situating these within the context of the emergent English mercantile state and attendant outrage at England’s exclusion from profitable trade in the Americas. Here, the article suggests, was a contrasting vision of world order, one rooted not in confessional identity or papal authority, but a nascent commercial imperialism.
I. A singular enmity
Legal commentators have long cast the pirate as the archetype of illegitimacy. In 1769, William Blackstone insisted that piracy is “an offence against the universal law of society”, the pirate so villainous that “all mankind must declare war against him”. 12 Today, this image of the pirate as an international scourge deserving universal reprobation is a staple of international legal discourse. This was evident when, a little over a decade ago, piratical depredation along the Somali littoral reached its peak. But already a decade earlier, in the wake of the events of 11 September, 2001 the US’s announcement of a “war on terror”, the pirate offered a familiar shorthand for illegitimacy and censure.
Its universal hostility naturalized in international legal discourse, the pirate provided a convenient analogue for an expanding universe of enemies. Writing in the New York Times, two months after the events of 9/11, Anne-Marie Slaughter declared “Al Qaeda members are international outlaws, like pirates”. 13 Others went further, declaring the two figures one and the same. 14 In George W. Bush’s 2002 National Security Strategy of the United States, terrorism was easily assimilated with piracy, both ubiquitous threats to be universally condemned and extirpated. 15 And as the “war on terror” continued, so too did the “pirate analogy” continue to provide the basis for justifications for practices of “targeted killing”, torture, and extraordinary rendition. 16 The invocation of the pirate as universal enemy has come to serve not only as rhetorical shorthand for illegitimacy and censure, but also a license for exceptional violence. Terrorists, former NATO commander Wesley K. Clark argues (writing with Kal Raustiala), are “like modern-day pirates” and should be treated as such. 17 They are “ipso facto excluded from the protection of the law of war”, Ingrid Detter concurs, precisely because, “like pirates, [they] place themselves outside the family of nations and make themselves enemies of mankind”. 18
The pirate of modern political and legal discourse, then, offers an analogue for other figures deemed universal enemies and as such placed outside of humanity and the protection of legal and moral limits—the slave trader, the war criminal, the genocidaire, the terrorist. Importantly, however, the figure’s universal enemy is presented in this discourse as a naturalised, a priori fact, divorced from any specific material and social relations. The pirate, international lawyers insist, is a timeless figure, its universal enmity projected backwards across history as far back as antiquity. 19 Piracy, one lawyer writes, has existed for over three thousand years. 20 Another suggests that “[v]irtually all oceans of the world have had a long history of maritime piracy, from the early days of seafaring in small, coast-hugging vessels all through the age of oared and sailed ships up to the heydays of imperialism”. 21 But if piracy has existed across time, so too, many international lawyers insist, has it borne a specifically legal impress, the stamp of illegality or, at the very least, illegitimacy. Bemoaning the obstacles posed by international human rights law to the capture of Somali pirates, for instance, Eugene Kontorovich argues that these “make it harder for nations to perform the oldest and perhaps most basic law enforcement function in international law: preventing piracy”. 22 Patricia Birnie’s account is also typical in this regard. Pirates, she writes, “were robbers who attacked and plundered other vessels indiscriminately and violently, roaming the oceans for this nefarious purpose”. It is, she insists, “an age old offence” dating to antiquity. 23 In her sweeping historical gloss, periodic reference to piracy in historical texts is taken as evidence of both its timeless existence and its unchanging status as a heinous offense under law.
On this view, the pirate’s legal identity stretches backwards through time in a smooth arc. “More than 2,000 years ago,” writes Douglas Burgess Jr, “Marcus Tullius Cicero defined pirates in Roman law as . . . ‘enemies of the human race.’ From that day until now, pirates have held a unique status in the law as international criminals”. 24 The rhetorical pattern that emerges is striking for its presentism. The pirate’s timeless legal disapprobation and transhistorical insidiousness—and the attendant license for his extirpation—is invoked as legitimation for his status and treatment under international law today. In the very act of invoking history, contemporary assumptions about pirates are projected backwards and naturalised, the pirate produced and reproduced as a figure of timeless universal enmity.
The example of Drake, however, with which the article began, suggests a far more ambiguous figure. Far from a singular figure of enmity, legal and literary accounts of Drake’s depredations suggest the pirate’s identity, legal and otherwise, was, at least in the 16th century, fundamentally contested. It is to those accounts that the article now turns.
II. Drake in the Spanish imagination
Drake’s exploits were recorded in numerous contemporaneous texts including several epic poems, the most important genre of Spanish American colonial literature. Maritime violence featured prominently in many poetic chronicles of Spanish colonisation. The first such account to feature Drake was authored by Juan de Castellanos, a Spanish priest who arrived in the New World around 1534. His Elegías de varones ilustres de Indias, first published in Madrid in 1589, totals some 113,609 verses and chronicles the early colonisation of the Caribbean and Spanish Main. In the third volume of the Elegías, Castellanos included five cantos on Drake—the Discurso de el Capitán Francisco Draque—which recount his various voyages of pillage against the Spanish. Written shortly after Drake’s sacking of Cartagena de Indias in 1586 and focusing primarily on that event, it nonetheless also includes details of his circumnavigation.
25
The poem opens by placing the threat of piracy to Spanish ports squarely at the center of New World concerns:
A hard, sad, and frightful case a furious assault and a deplorable calamity to some ports in this New World, I sing with hoarse and woeful voice to which my tongue sends forth from the depths of my constricted breast but who could sing if not to Spain’s dishonour?
26
Drake’s assaults are then given a specifically religious character by Castellanos who identifies the authors of this “calamity” as Lutherans.
and the destruction that with Lutheran troops at his command the English Captain Francis inflicted in this our new sacred sheepfold.
27
A short biographical sketch of Drake follows, before a description of Drake’s various incursions into the New World including the circumnavigation. While bemoaning the “destruction . . . Captain Francis inflicted”, Castellano’s criticism is directed also at the administrative situation of the colonies. A recurring theme is thus the ease with which Drake is able to attack poorly defended Spanish ports and vessels. This can be seen specifically in the taking of the Nuestra Señora de la Concepción. Here, Castellano is at pains to stress the absence of weapons and soldiers to defend the Spanish treasure ship and the lack of precautions taken by Spanish authorities. 28
If the poem is in one sense an extended harangue against the Habsburg administration in the Indies, its central figure of enmity nonetheless remains Drake. He is described at various times as a pirate, a thief and a tyrant. Interestingly, though, the enmity attaching to Drake rests in large part on his confessional identity, his depredations placed squarely in the context of an inter-imperial confrontation between Catholic Spain and Protestant England. Already in the poem’s opening stanzas, quoted above, he is identified as Lutheran, as he is repeatedly throughout. Then, in attacking the Nuestra Señora de la Concepción, Castellano has Drake openly challenge Spain’s claim to sovereignty over the New World, a claim rooted in the papal bulls of donation issued by Pope Alexander VI in 1493:
And as you are said to have such enlightened minds please free me from this doubt, did Adam leave a will and testament whereby he entrusted these lands to Spain alone? If so, show me the deed and the decree and I will renounce to all my claims because if the opposite is true, he who can takes all.
29
Drake’s heretical identity is increasingly emphasized as the poem progresses. He acts in the name of England: “Amayna, amayna, por Ingalaterra”—“lower the sails, lower the sails, for England”. 30 Drake’s, Castellanos stresses, is a “perfidious nation, blindly malignant, wretched enemy of the divine honor”. 31 Both pirate and nation have been “guided to the deep inferno / by a false and soulless beast: / that great chatterbox and fierce monster / who was Martin Luder or mean Luther”. 32
In his careful analysis of Castellanos’s poem, Emiro Martínez-Osorio has catalogued the various epithets used to depict Drake and his fellow heretics as demonic enemies. The list is extensive and includes such terms as “evil army” (ejército maligno), “ministers of hell” (ministros del infierno), “cruel beasts” (bestias fieras), “Lutherans from hell” (luteranos infernales), and “allies of the devil” (miembros del demonio). 33 Such language, on Martínez-Osorio’s analysis, lends “the ubiquitous conflict underlying Castellanos’s narrative” the tone of “a religious war against a demonic enemy”, with the fundamental opposition between English and Spaniards resting on “their adherence [to] or disdain for the Catholic faith”. 34 Nina Gerassi-Navarro similarly notes the moral opposition reiterated constantly between Spanish Catholics and English Protestants, a line running through the poem delineating “good and evil, religious and heretical”. 35 The coincidence of monstrousness and heresy is affirmed when Drake sacks Santo Domingo in 1586: Castallano has him pillage churches and desecrate religious art and, in an episode of Christian martyrdom, brutally execute two Dominican friars.
The religious enmity with which Drake’s piracy is identified can be found also in subsequent Spanish accounts. Martín del Barco Centenera’s La Argentina, published in Lisbon in 1602, describes Drake’s passage through the Strait of Magellan and his depredations along the Chilean and Peruvian coasts. As in Castellanos’s account, Drake’s moral failing lies in his Lutheran identity: “But what’s most important and most necessary / He lacks: the love of Jesus Christ”. 36 Likewise in the Armas antárticas of Juan de Miramontes y Zuázola, written circa 1608 to 1614, where Drake is portrayed as a violent pirate and even Satan’s ally, juxtaposed with the faithful Catholics determined to defend their lands against heretics. Here, again, pirate and heretic are two sides of the same coin who, having “refused obedience to the Holy Father” had become “hateful to the world and to God”. 37
III. Enemies in the New World
These accounts of Drake presented him as a demonic figure and heretical foe. In this aspect, he fit into a tradition of religious foes facing the Spanish in the New World. Iberian colonisation had long been understood through a religious lens. 38 Columbus’s arrival in the Americas in 1492 coincided with the fall of the Nasrid kingdom of Granada, the culmination of the Reconquista of the Iberian Peninsula. There could be little doubt, in the Spanish imagination, that both were part of a divinely inspired Christian expansion, a process, in Edmondo Lupieri’s words, “towards a Christian kingdom covering the entire globe”. 39 But just as Christianity and Christendom were threatened by hostile (Islamic) forces in Europe, foremost amongst them the Ottoman empire and its perceived vanguard in the western Mediterranean, the pirates of the Barbary coast, so too was it under threat in the New World, which had, Spanish colonists believed, long been under Satan’s control. The Spanish would have to continue the Reconquista here, too, to “recover the continent for God”. 40 Indeed, Castellanos himself wrote, in his Elegías, of the “discovery” of America pitting the forces of evil against the heroic Christian conquistador.
Almost immediately the devil was encountered in the form of Amerindians. In later 16th-century debates amongst Spanish jurists over the ontological status of the indigenous population, Vitoria would posit a universal framework in which both European and Amerindian shared a universal humanity and reason. Yet, as Silvia Federici has noted, such debates were only conceivable against the background of an already successful “ideological campaign representing the latter as animals and demons”. 41 One of the earliest Iberian depictions of Amerindians is the Inferno (c. 1510 –1520) by an unknown Portuguese master. In that painting, we see the devil presiding over the torture of Europeans adorned with Amerindian headdress. 42 The early conquistadores may have begun, in one colonist’s words, “the process of liberating the natives from Satan’s brutal, unrelenting tyrannical rule”, 43 yet Satan was still very much a threat, “scorching, drying, and destroying the fruit of virtue growing in the hearts and souls of the Indians”. 44 Colonists such as Gonzalo Fernández de Oviedo, governor of the Ozama fort on Santo Domingo in the early 16th century, wrote of the indigenous population as “bestial and evilly inclined”. 45 Throughout the 16th century, Iberians would author numerous chronicles and epic poems pitting heroic Christian conquistadors in confrontation with a tyrannical devil ruling over hordes of demonic Amerindian minions. 46 Biblically sanctioned violence against these demonic enemies was common: the torture and execution of Amerindians under charges of diabolism and devil worship was widespread. 47 Colonisation was, as Jorge Cañizares-Esguerra puts it, “an ongoing epic struggle against a stubbornly resistant Satan”. 48
This struggle against the devil in the New World would continue, with the satanic enemy taking on different forms. If Amerindians were initially viewed as Satan’s most powerful allies, they were soon joined—or even replaced, as the colonial regime in Mexico, Peru and elsewhere was firmly established—by new foes. 49 Most prominent amongst these demonic agents, though, was the pirate. The pirate, more than any other figure, came to embody the religious alterity threatening the universalising Christian expansionism of the Habsburg empire.
IV. Christendom under siege
In the pre-1492 inter-polity order of medieval Europe, Wilhelm Grewe writes, the international legal community was “identical to the Christian community, united in the Roman Church”. 50 Christianity formed a “close-knit occidental community” in which the Pope determined the “common good” for the societas Christiana and the Holy Roman Emperor served it with temporal power. 51 When Charles V became Emperor, he took on the mantle of “the defender of Christendom against all its enemies, both external and internal”. 52 Although this system had been collapsing already by the time Columbus arrived in the Americas, the Papacy and Holy Roman Empire remained important symbols—both insisted on an “overarching agency”, albeit a weakened one, with the Pope continuing to claim “a legislative power binding upon all Christian nations”. 53
In 1493, the papal bull Inter Caetera had called for a universal mission, insisting that “the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself”. 54 The Treaty of Alcáçovas between Portugal and Spain had already, in 1479, divided the Atlantic Ocean into two spheres of influence, but now Pope Alexander VI set out a formal line of demarcation. Exhorting them to spread the faith, Alexander granted to the Crowns of Castile and Aragon all lands west and south of a pole-to-pole line drawn “one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde”. 55 The Treaty of Tordesillas in 1494 affirmed the division between respective Spanish and Portuguese missionary zones. 56
The Spanish empire, then, was understood, at least in the imperial ideology, as not merely a matter of territorial aggrandizement but of a piece with the religious mission of salvation and of enlarging the Christian commonwealth. 57 While the Salamancan jurists would reject Rome’s authority as legitimate grounds for Spanish conquest, the Castilian crown nonetheless continued to rely on papal donation for legitimacy of Spanish claims to the Americas. The donation’s “continuing importance in the official historiography of the Spanish Empire” served, in Anthony Pagde’s words, “to keep the continuity between the Spanish monarchy and the ancient Christian Imperium romanum firmly on the agenda”. 58 The ideological construction of a missionary impetus behind territorial expansion would continue in the service of Iberian colonialism until the late 17th century. Even then, the Spanish jurist Diego Andrés Rocha could insist that Spain’s claims to the New World derived from “God’s providential design to propagate the true faith through the agency of the Spanish”. 59
Yet already in the 16th century, the authority of the Pope could no longer guarantee an Iberian claim to imperium would be recognized by all European powers. Christendom was not the monolithic community it had once been; ecclesiastical discipline had dissolved, the Protestant Reformation creating a lasting schism in Christianity, not to mention over a century of wars of religion. The supremacy of Pope and Emperor had been undermined: so too the latter’s claimed monopoly on the New World. As Francis I of France declared—the bon mot placed in Drake’s mouth by Castellanos—“The sun shines for me as for others. I should very much like to see the clause in Adam’s will that excludes me from a share of the world”. 60 William Cecil, the Elizabethan statesman, likewise dismissed the Pope’s right “to give and take kingdoms to whomsoever he pleased”. 61 The result, Carl Schmitt observed, was a world historical struggle “between Reformation and Counter-Reformation, between the world Catholicism of the Spaniards and the world Protestantism of the Huguenots, the Dutch, and the English”. 62
It was against this background that the quickly growing penetration by Protestants—Elizabethans, Huguenots and Dutch—into Catholic missionary zones was interpreted by Spain and its legal thinkers. As Amedeo Policante writes, mariners from these countries, in pursuing trade or, like Drake, preying on the Spanish colonies in the Americas or simply plundering the Spanish galleons returning to Europe with gold and silver, “refused to respect the orders imposed by papal authority”. In doing so, Policante suggests, they “endangered the welfare of the entire Christian community”. 63 It was, after all, as Vitoria argued, in the interest of all Christianity that the Pope had granted a monopoly on travel to the Americas. Although the Pope was not temporal lord, he nonetheless, insisted Vitoria, “has power in temporal things insofar as they concern spiritual things”. It was the Pope’s “special business to promote the Gospel throughout the world” and, “if the princes of Spain are in the best position to see to the preaching of the Gospel in [the Americas], the pope may entrust the task to them, and deny it to all others”. In fact, Vitoria stressed, he may “restrict not only the right to preach, but also the right to trade” if such restriction is “convenient for the spreading of the Christian religion”. And indeed, Vitoria believed, it was convenient, for if there were “an indiscriminate rush to the lands of these barbarians from other Christian countries, the Christians might very well get in each other’s way and start to quarrel”, frustrating the “business of the faith and the conversion of the barbarians”. 64
It was quite logical then, in Inter Caetera, for the Pope to have threatened anyone crossing the line of demarcation, for “trade or any other reason”, with “immediate excommunication”. 65 But excommunication was no mere spiritual sanction. As Grewe explains, in the late medieval world, it meant “not only exclusion from all sacraments, from mass, from an ecclesiastical burial”, and so on, but also “absolute exclusion from the community of the faithful, with the result that no one was permitted to communicate with the banned person and that temporal powers were obliged to outlaw him”. 66 For the Spanish, then—indeed for medieval Catholicism more generally—excommunication and outlawry were two sides of the same coin. To cross the line into the Spanish missionary zone was not only to incur ecclesiastical sanction but to step outside of, and to abandon, the res publica Christiana. As Policante puts it, “outlawry” is “the secularization of the theological notion of excommunication”. 67
On the Spanish view, it followed, Protestants that crossed the papal lines of demarcation, be they merchants or depredators, were not merely contesting an Iberian monopoly on the New World, but challenging the very authority of the Pope, whose role it was to determine the common good of the universal Christian community—threatening, that is, not only Spanish colonialism but the very juridico-political structure of Christendom.
V. Protestant pirates
Drake, if the most famous trespasser, was by no means the first. French Huguenot raiders based in the Protestant stronghold of La Rochelle had been active in the Atlantic Triangle since Columbus first arrived in the Americas. With Cortés’s conquest of Mexico from 1519–21, the volume of treasure flowing from America to Spain increased dramatically. 68 In 1523, Jean Florin, a Norman raider, captured several Spanish ships off the southwest coast of Portugal returning with treasure. By 1536, French predation had entered the Caribbean, with at least one French raid on a Spanish ship off the north coast of the Panamanian isthmus. 69 The next year, reports of French depredation came from the ports of Tierra Firme, in particular Cartagena and Nombre de Diós, as well as nearby Havana and Santo Domingo. Paul Hoffman reports some 22 French raids on settlements in the Indies between 1535 and 1547, while 66 ships were lost in the same period, although of these more than half were attacked off the coast of Spain. 70
If the French were the vanguard of Protestant attacks on Spain’s New World empire, they were soon joined by the English and, following revolt in the Low Countries from 1568, the Dutch. Their numbers would increase steadily so that by October 1595, the treasurer of Santo Domingo could report that pirates were “as numerous and assiduous as though these were ports of their own countries. They lie in wait on all the sailing routes to the Indies . . . . Not a ship coming up from the outside escapes them; nor does any which leaves the harbour get past them”. 71 The Indies had become one more theater in the European wars of religion which threatened the stability of the Spanish Christian empire. The Protestant interlopers in Catholic missionary zones were no mere annoyance but, like the devil’s agents amongst the indigenous populations of the Americas, or the Islamic pirates in the Mediterranean, a threat to the universal Christian commonwealth in which name Spanish empire operated. Indeed, depredation in the New World was easily assimilated to the overarching battle against Christianity’s Others—especially against Islam in the Mediterranean which remained, in Barbara Fuchs’s words, the “satanic other of Christian Europe”. 72 The Protestant depredators, excommunicated from the societas Christiana, were thus also pirates—piratas luteranos or corsarios luteranos, 73 analogous with the Mediterranean figures of the piratas islámicos or corsarios islámicos—and, like their Islamic counterparts, not mere public criminals but enemies of all Christian civilisation, the refusal to recognize, let alone obey, papal dispositions endangering the entire Christian community, albeit a crumbling one.
Fernão Oliveira’s 1555 treatise on methods of naval warfare, Arte da Guerra do Mar, was unexceptional in lumping English, French and Algerians together as dangerous piratical foe. 74 These were joined, in Balthasar de Ayala’s De iure et officiis bellicis et disciplina militari (1582), by Protestant Dutch insurgents. Neither pirate nor rebel, the Judge Advocate General of the Habsburg army in the Low Countries insisted, enjoyed the rights of belligerents—both could legitimately be treated like earlier heretics and infidels of medieval holy wars. 75 Christianity, at least as imagined by the Iberians, was now threatened on three fronts: the Ottomans in the Mediterranean, the Dutch in northern Europe, and various Protestant pirates in the Atlantic.
The connection was only strengthened in the early 17th century when many English pirates began using the Barbary Coast as a base of operations and, especially, when the English state entertained the North African Moors as “a probable ally against Catholic Spain”. 76 In at least one Spanish ballad from 1611, Englishmen, Turks, and Moors all sail together as pirates. 77 Already in the 16th century, though, Spanish representations of Atlantic piracy incorporated these attacks into the “grand narrative” of Spain’s imperial mission. In this narrative, Fuchs observes, English incursions into Spanish zones were “a heavenly scourge visited upon Spain, to be endured as were the attacks of Islam”. 78
Such representations are clear in various Spanish texts from the 16th century in which Protestant pirates take on a truly demonic form alongside and in tandem with the continuing threat of an encroaching Islam. One of the most famous epic poems from the period, published a decade after Castellanos’s Elegías, is Félix Lope de Vega’s La Dragontea. 79 Born in 1562, Lope was a Spanish playwright, poet and novelist, today held in Spain in much the same esteem as Cervantes. La Dragontea recounts Drake’s final raid on the Spanish Main, his attempt to capture Nombre de Dios, the port in Panama from which silver was sent back to Spain. The poem opens with a description of the Christian religion under attack: “Look at my face, blind with tears, / the Christian religion under siege / Spain, Italy, and America disturbed / with native and barbarian swords”. 80
Spain is represented by the figure of the Christian religion, la religión cristiana, under attack in both Europe and America. Drake’s raid on Panama stands, then, as a metaphor for the larger siege of Catholicism, with Spain’s imperial struggle—valiantly extending Christianity into the New World and fending off heretics and infidels—transposed into a biblical frame of reference. Drake is cast by Lope as a satanic dragon, the Beast of the Apocalypse, with the struggle against him, as Fuchs puts it, “a cosmological battle of good against evil”.
81
La religión cristiana, already under attack by Islamic pirates in the Mediterranean, begs God to spare her the Dragon’s attack.
Is not Mohammed’s domination enough, which causes Italy and Spain so much anxiety? Do you also want to grow and spread the vile seed of infamous Luther?
82
Again, the connection is made between Muslim attacks on Spain and Italy—in the latter, Spain controlled Sicily, Naples, Sardinia, and Milan—and piratical Lutheran attacks in the New World. If Drake is a creature of Satan, his actions mirror those of the Barbary pirates in Algiers and “Tripoli, Tunis and Bizerta”. These, Lope writes, with reference to the Barbary captivity that so troubled the Christian imagination, 83 are responsible for the “lost souls who cry for / sad Italy and miserable Spain / captives of the Barbarians who adore / the deplorable theft of bodies”. 84
Later, in describing Drake’s attack on Nombre de Dios, Lope draws on imagery from the fall of Gothic Spain to invading Moors—the destruction, for instance, of the town’s church and relics, a motif common to 16th-century chronicles recounting the Moorish invasion.
85
Further connections are drawn when the Spaniard, Don Diego Suárez de Amaya, exhorts his troops to resist Drake.
And beyond the fact that Heaven protects us, simply our being Spanish compels us not to turn the other cheek from the fierce Englishman, when with greatest might he seeks and follows us. For per chance the arrow will return to the Arabic bow and hand of the enemy, and, should it not, we are born to die, and will live after death.
86
If they should not resist Drake and turn back the demonic dragon, they risk not only capitulation to the heretics in the New World, but also a new Muslim threat to Spain.
The poem closes with Drake’s death, slain finally by Philip II, a scene depicted on the frontispiece of the work’s 1598 edition. Drake, here again cast as the Dragon of the Apocalypse, wrestles with an eagle, his slayer: Philip II as the archangel Michael.
87
With Drake dead, Philip III—Lope authored the poem shortly after Philip II’s death—is free to turn back to the Mediterranean, to Christianity’s other enemies. La religión cristiana makes a final plea, singling out once more the Muslim pirate that he too may now be crushed:
Oh Great Lord, who humiliates the giant, turn your eyes to the humble David, to the Moor turned arrogant pirate loaded with Catholic spoils: turn, eternal thunderous Jupiter, the rays of your strength and fury onto my enemies and those of Spain whose harm, Lord, afflicts and hurts me.
88
Lope’s poem was far from unique. La Dragontea, Cañizares-Esguerra suggests, was characteristic of efforts to cast “the battles against Satan in the New World as episodes in a global struggle”, one in which Muslim pirates in the Mediterranean and Protestant pirates in the Caribbean each played a role. 89 These and other similar narratives enabled, to use Fuchs’s phrase, “the discursive consolidation of a Spanish identity eternally committed to the defense of the Faith”. 90
This religious identity attaching to the pirate overshadowed the legal distinctions developing elsewhere in Europe. Bartolus’s 1354 treatise on reprisals, Tractatus represaliarum, would only be printed for the first time in 1588 in Basel. 91 Under its influence, the legitimacy of maritime depredation increasingly turned for many legal thinkers on sovereign license. Some of the Protestant pirates making sail for the New World carried letters of marque or enjoyed official crown support, covert or open. Many more did not. The degree of crown support enjoyed by Drake—and the extent to which Elizabeth appreciated his voyage would be one of plunder—has been the subject of extensive debate. Yet such nuances were of minor importance in Spanish determinations. Certainly, Spanish victims of English piracy on occasion took their complaints to the English Admiralty Court seeking the return of booty or reprisal for spoiled goods. 92 But for 16th-century Iberian authorities, it mattered little whether a Protestant interloper held an official commission from a European prince. Whether Drake, say, was plundering in his own name or that of the queen was neither here nor there: in either case he was impeding Spain’s missionary activity and undermining the Catholic Church’s authority.
The piratical identity attaching to Drake and others, and the enmity in which they were held, rested primarily on their heretical character and incorporation into a grand religious narrative. It is telling that one finds few references in historical records to a corsario inglés, francés or holandés. Those captured were defined not by their nationality but by their religious beliefs: corsarios luteranos. 93 Moreover, they were tried not before regular colonial courts but by the Inquisition. By the time the Holy Office of the Inquisition arrived in Spanish America in the mid-16th century, Lutheranism had become a common charge, used to denounce various beliefs and non-orthodox practices. 94 Indeed, the establishment of Inquisitorial tribunals in the Americas was motivated, in the first place, by the threat of Protestantism within urban colonial communities—a threat posed by alumbrados, for instance, whose practice of silent prayer and direct communion with God looked suspiciously Lutheran, but also by contact with foreign heretics arriving in the Indies. 95 In 1570, 38 English sailors were tried for heresy by the Inquisition in Mexico. In 1578, the Lima tribunal confirmed that any English pirates captured would be treated and tried as heretics. 96 Two years later it found John Oxenham, one-time companion of Drake, guilty of heresy, for which he was hanged and, as legend has it, his body burned on the stake. 97 The records of the Inquisition are replete with similar trials of luteranos—records in which the terms luteranos, corsarios, and piratas are used interchangeably. 98
VI. English attitudes towards depredation at sea
Drake’s depredations against the Spanish empire in the Americas were, we have seen, incorporated into a religious narrative of Spain’s imperial mission. This ideological frame reproduced the figure of the pirate once more as a demonic, heretical foe—an enemy of a universal Christendom now extended to the New World. Like all ideologies, however, it was rooted in the concrete conjuncture, one in which the Habsburg empire faced not only a religious but also a material threat from new imperial formations, most importantly a nascent English empire.
In England, imperial interests also took on religious shape. Thomas Dekker’s play, The Whore of Babylon, offered an allegory of Elizabethan England at war with Rome, the latter cast, in keeping with a long anti-papal tradition, as the empress of Babylon, the “whore” of the play’s title. 99 John Foxe’s violently anti-Catholic Acts and Monuments 100 fuelled the view of English raiders as “seaborne crusaders of the Protestant Reformation”. 101 Thus for some, as John Appleby writes, “the plunder of Spain was projected as a patriotic duty, as a means of defending the Protestant cause while weakening the ‘great whore of Babylon’”. 102 Indeed, Foxe and Drake themselves were close friends, the former viewing Drake as a “true warrior of the faith”, while the latter is reported to have read extracts from Acts and Monuments to Spanish prisoners during his 1587 Caribbean expedition. 103 Yet, while in both Spain and England imperial interests were given expression in religious discourses, attitudes towards the figure of the pirate differed. Whereas in Spanish legal thought, the pirate remained in the 16th century a figure of extreme religious enmity, the English position was more ambiguous.
English maritime depredation in the early 1500s varied in pattern. In local waters around England, especially on the country’s southern coast, “petty plunder” flourished and was indiscriminate and widespread. Small-scale, short-range venturing by poorly armed ships was common, often supported by coastal communities and protected by local officials. 104 In some regions, such as south-west England, sea-raiding was a long-standing tradition, whereas elsewhere, such as in the north-east of the country, plunder was more opportunistic and occasional. 105
Efforts were taken to suppress such depredation. In 1443, Henry VI had ordered that restitution be made to Englishmen so accosted. Much like other early laws in the Mediterranean, this order was concerned entirely with the question of property rights, with no suggestion of criminal penalty attaching to those identified as a pirate or pirata. 106 A 1490 Proclamation by Henry VII went somewhat further, complaining of “divers and moneyfold spoliations and robberies” committed by “enemyes as by other pirattis and robbers”. 107 The term pirates (or pirattis) is left undefined, and no distinction is made between these and the other enemies and robbers referenced. Nor is the immediate concern the acts of depredation themselves, but rather that the condemned “daily resorte into divers portes and places of this his realme of England” where the parties in question “sell their prises, spoiles, and pillages”. 108 The Proclamation thus commands that no one in the king’s realm shall comfort, take or receive “any of the said mysdoers, ne any merchandisez or goodes by them spoiled or takyn”. 109 Punishment for the “enemyes”, “pirattis” and “robbers” is not mentioned, only for the receivers of their goods in England. Indeed, no legal consequences attach to the pirates at all.
In short, acts of theft at sea attracted no exceptional treatment under English law at this time. Indeed, repression of maritime plunder in English waters was largely left to local interests. As early as 1486 Henry VII reached an agreement with the northern port of Hull under which the mayor and aldermen would take sureties from English ships against piratical activity. 110 Suppression of robbery, both on sea and land, depended on the power of local gentry. These, however, were often the very same people responsible for the depredation of which they were tasked with stamping out. 111
The first suggestion of criminality attaching to “pirates” is found in a 1535 statute, complaining in its preamble of “pirates, thieves, robbers and murders upon the sea” who “many times escape unpunished”. 112 Yet reference to pirates is dropped in the substantive text of the statute. A nearly identical statute the following year again dropped reference to pirates in its substantive text, the invocation in both preambles apparently used as a general pejorative rather than in any technical legal sense. 113 The statute sought to extend common law punishment of robbery, murder, etc. to those acts committed on the sea (i.e., outside the common law courts’ jurisdiction). It did not create any new common law offense or felony, but rather gave a means of trying, before Admiralty commissions, robbery, murder, etc. at sea by the common law, with attendant criminal penalties, as if they had been “done upon the land”. 114 There is no suggestion that the statutes enjoyed any extraterritorial reach beyond the jurisdiction already enjoyed by the Admiral, which included vessels flying English colours outside the realm, but not foreign vessels.
As the 16th century progressed, English depredation grew more varied. Small-scale, opportunistic spoil in English waters continued, but was joined by more systematic plunder of trade routes further afield. Two factors were central to this development. First, the aggressive foreign policy of Henry VIII, from the 1520s to the 1540s, saw the state encourage depredations against French shipping in and beyond the Channel. 115 Reprisals, by now firmly rooted in international relations as a legitimate means for merchants to recover losses from the subjects of foreign states, were dispensed indiscriminately in times of war, any concern for the careful rationalisations of Bartolus’s concilia long forgotten. This private, commercial depredation, deployed for strategic purposes in the absence of large-scale professional navies, became known as “privateering”. Of course, the line between legitimate privateering and illegitimate plunder was fluid, the spoils of war no less attractive when unsanctioned in peacetime.
Second, for a growing London bourgeoisie with aggressive commercial ambitions, organized large-scale plunder promised exciting opportunities for profit. Localized plunder thus gave way to more ambitious depredation reaching ever further into the Atlantic, epitomized by the voyages of trade-cum-plunder by individuals such as John Hawkins. 116 In October 1562, a fleet under Hawkins’s command set out from Plymouth, financed by investments from London, including from the royal court. Stopping in Tenerife, the fleet sailed on to Cape Verde and continued down the Guinea coast. There, Hawkins filled his ships with slaves, “stealing some from Portuguese traders, capturing others on his own, and finally taking a Portuguese vessel to carry the slaves that could not be crammed into his own holds”. 117 The Triangular trade took Hawkins on to the West Indies and South America where his human cargo was sold to Spanish colonists, happy for the English slavers to undercut the Iberian monopoly.
Throughout the 1560s, English depredations swelled with Spanish shipping increasingly its target. As early as 1560, the Spanish ambassador complained that 80 subjects, primarily from the Low Countries, had been victims of English pirates. 118 The renewal of Anglo-French hostilities in 1562 saw a new wave of privateering commissions, under the cover of which English depredators intensified their entrepreneurial plunder also of Iberian shipping. Spanish ports—peninsular and in the Canary Islands—were increasingly their target. Returning from a slaving voyage to London in 1564, Hawkins found strenuous protests by the Portuguese and Spanish ambassadors to his intrusions into the Indies, on the Iberian view, as we have seen, the exclusive preserve of Catholic merchants. 119 Elizabeth and her counsellors were happy to earn a generous return on their investments in Hawkins’ voyages but could not openly support depredation. Hawkins was called upon to post a £500 bond and promise to not travel again to the Indies that year. 120
Tensions between England and the Iberian monarchies increased throughout the 1560s, centred initially around English penetration of the Guinea trade, its opportunities for both commerce and pillage attractive to promoters in London. For the Spanish and Portuguese, as we have seen, interlopers were pirates. The English court, though, defended its merchants’ freedom to trade in West Africa. A pattern emerged wherein tacit approval of depredation from the English crown went hand in hand with public proclamations condemning plunder of Spanish shipping. In November 1564, with Philip II’s remonstrations ever louder, Elizabeth reported to the Spanish ambassador that “she had ordered her subjects not to go to places where the [Spanish] King held sway, and if they contravened these orders she would have them punished”. 121 And in 1569, she denounced “all pyrats and rovers upon the seas”, pronouncing them “to be out of her protection, and lawfully to be by any person taken, punished, and suppressed with extremity”. 122 Meanwhile, though, members of her court were increasingly active in the Guinea trade: the Queen loaned ships to Guinea traders and her councilors were members of the trading syndicates sponsoring their voyages. 123
The Guinea trade, and the attendant efforts of Hawkins and others to break into the transatlantic slave trade, promoted an ambiguous intermingling of aggressive commercial trade and outright depredation. Hawkins’ voyages to the Caribbean had highlighted Iberian intransigence to peaceful commercial relations in the New World, while also flagging the vulnerability of colonial settlements to pillage. The 1570s saw what Appleby describes as an “outburst of marauding in the Caribbean by the English”, of which Drake was at the forefront. 124 In 1569 and again in 1571 and 1572, Drake set out on raiding voyages to the Caribbean. Working with Huguenot rovers and assisted by cimarrons—escaped African slaves—he plundered the Panama isthmus, returning to England with sizeable booty.
Needless to say, Drake’s depredations lacked any legitimacy, legal or otherwise, in Spanish eyes. Although he presented his voyages as exercises in reprisal—the Battle of San Juan de Ulúa (1568), during which five English ships were lost to the Spanish, was regularly cited—Drake in fact possessed no commission. Nor, despite growing animosity, were Spain and England at war. On the by now longstanding rules of reprisal, the Spanish were quite justified in seeing Drake’s acts of plunder as clearly illegitimate (in addition to the illegitimacy they attached to him as a Lutheran interloper). But so too did Drake’s actions appear illegitimate under the approach taken by the English admiralty towards robbery and plunder in English waters. Was this not robbery as extended to the sea by the 1535 and 1536 statutes?
Schmitt has argued that in the 16th century, starting with the lines of amity agreed at Cateau-Cambrésis in 1559, the New World was conceptually and juridically set off from Europe. A new frontier delineated the “open spaces” of the New World and the free seas. At this “line”, Schmitt argued, “Europe ended and the ‘New World’ began”. So too did “European public law” end here and with it “the bracketing of war achieved by traditional European international law, meaning that here the struggle for land-appropriation knew no bounds”. Beyond the line, Schmitt wrote, was “an ‘overseas’ zone in which, for want of any legal limits to war, only the law of the stronger applied”. In the anomic space beyond the line, “force could be used freely and ruthlessly” in the appropriation of new land by Europeans. But this division also, Schmitt observed, gave “free rein” for looting, piratical plunder and pillage outside the jus publicum Europaeum. 125
Without citing Schmitt, Eliga Gould describes a remarkably similar conception of a division of planetary space, one with a hold specifically on English thinkers. Starting in the 16th century, they “accepted an image of Britain’s Atlantic periphery as a region ‘beyond the line,’ a zone of conflicting laws where Britons were free to engage in forms of violence and exploitation that were unacceptable whether in Britain proper or in Europe’s law-bound state system”. 126 Acts of violence and plunder in the New World, like those of Drake, were most certainly “beyond the line”. For the English, such violence directed at the Spanish was not only legitimate, then, but even increasingly necessary in light of their growing imperial ambitions.
VII. Plunder in the service of empire
Until the middle of the 16th century, London had been largely peripheral to the nascent world economy. The great majority of England’s overseas trade was carried by foreign merchants, the country’s connection to Mediterranean markets dependent on Florence, Genoa and Venice. A single merchant organisation, the Company of Merchant Adventurers, sold the country’s only significant export, cloth, primarily through Antwerp. In the second half of the century, however, as Ottoman power weakened the Italian grip on Mediterranean trade, English merchants became increasingly active. The 1570s, in particular, saw a dramatic expansion of English merchant capital as new overseas links were forged. New forms of collective investment, systems of credit and join-stock companies such as the Levant Company allowed the London merchant community to open up long-distance commerce and cement England’s role in an expanding global system of trade. 127
While trade with the Levant market, in particular, flourished, Habsburg hegemony in the New World closed off potentially valuable markets for English exports, especially English cloth. In his 1580 pamphlet “A Discourse of the Commodity of the Taking of the Straight of Magellanus”, Richard Hakluyt warned of the dangers of the Spanish monopoly: “whenever the rule and government of the East & West Indies, and there several isles and territories shalbe in one Prince, they neither will receive English cloth nor yet care for anie vente of their commodities to us, having then so manie places of their owne to make vente and enterchange of ther commodities”. 128 The need to secure new markets for textiles, Claire Jowitt notes, was especially acute following the loss of access to the overseas Antwerp trade routes. English support for the Dutch in their rebellion against Spanish rule had seen them barred and the Americas offered “potentially illimitable” new markets. 129
The 1570s and 80s saw a surge of propaganda in support of, on the one hand, English expansion and, on the other hand, violent efforts to undermine the Spanish monopoly. In his Discourse Concerning Western Planting (1584), Hakluyt opined on the benefits of colonial settlement in the New World, lauding Walter Raleigh’s efforts to establish a colony at Roanoke. 130 Westward expansion that challenged the Spanish monopoly on the West Indies, Hakluyt argued, might “bringe King Phillippe from his highe throne” and “make him equall to the princes his neighboures”. 131 The limits of Spanish dominion in the West Indies, he insisted, was “nothinge so large as is generally ymagined and surmised”. 132 Here was an explicit rejection of the papal donations and an insistence that Elizabeth’s own title to the West Indies was “more lawfull and righte than the Spaniardes”. 133
Already in 1562 Elizabeth had insisted on English access to the Americas. “[N]othing will bring these people to their senses”, wrote Philip’s ambassador when informed of the queen’s refusal to accept Spanish claims to monopoly backed by papal award. 134 Seven years later, Antonio de Guarás, a Spanish agent in London, wrote to the Duke of Alba to report Elizabeth’s continued insistence “that Englishmen abroad shall enjoy their liberties . . . that they shall be free to go with merchandise to the Indies, and that neither in Flanders nor Spain, shall they be molested in person or property for their heresies”. 135 Unsurprisingly, de Guarás dismissed the queen’s demands as “absurd pretensions”. 136 For colonial promoters like Hakluyt, violent conflict with Spain, in the face of their intransigence, was an inevitable corollary of English attempts to access new markets and fashion a maritime empire.
Still, Elizabeth was not willing to countenance a direct assault on Spanish possessions in the New World, preferring covert support for plunder by English depredators. As Ludwig Dehio puts it, “Elizabeth, manoeuvring cautiously, disavowed them as need arose, while silently furthering their ends”. 137 Drake’s 1977 voyage, famous for his circumnavigation of the globe, epitomized this stance. Elizabeth and her ministers’ support for Drake remained secret; publicly, this was to be a voyage of trade to Alexandria and Constantinople. 138 In reality, the plunder of Spanish wealth in the New World was Drake’s chief concern. 139
The earliest English accounts of Drake’s voyage were notably sparse, likely constrained by fears of Spanish retaliation. The first published commemoration of his circumnavigation was Nicholas Breton’s brief encomium, A discourse in commendation of the valiant gentleman, maister Frauncis Drake, with a reioysing of his happy adventures (1581). 140 A poem of 18 lines followed by a short eulogy, the work celebrated Drake finding “the Land where Treasure lyes, the way to come by it and honor by the getting of it” but was otherwise short on details. 141 After the outbreak of war between England and Spain in 1585, such concerns were no longer pressing. A lengthier account, already quoted at the start of this article, followed in Hakluyt’s The Principall Navigations (1589), celebrating Drake’s voyage and depredations. 142
In her close reading of Hakluyt’s account, Jowitt shows how the ideologue for English empire placed Drake’s voyage within a broader narrative construction of English imperial aspirations. Hakluyt championed an English “mercantile nationalism”, seeing in commercial expansion the means both to future economic prosperity—through the export of English cloth to new markets—and to challenge Iberian dominance. 143 In this context, Drake’s violence against an imperial rival, especially one intent on excluding England from potentially profitable new markets, was presented “not as criminal activity, but as a standard aspect of early modern mercantile behaviour in disputed colonial regions”. 144 Violent depredation, at least when pursued “beyond the line”, was, in Hakluyt’s construction, simply a “form of business practise . . . designed to ensure a share of profitable markets overseas”. 145 For the English, it was Iberian monopoly that was illegitimate, Drake’s “piracy” understood, and celebrated, as an anti-monopolistic practice, a “type of patriotic trade” central to the country’s new imperial and commercial project. 146
VIII. Conclusion: a new imperial formation
That project, premised in Hakluyt’s vision on violent depredation, represented the rising influence of merchant capital in the English state. “Commercial capital”, Marx would write, “when it holds a dominant position, is thus in all cases a system of plunder”, its development “directly bound up with violent plunder [and] piracy”. 147 With the outbreak of the Anglo-Spanish war in 1585, depredations increased further—some 200 ships dispatched each year to “hunt and rob the Spaniards in the West indies and on the high seas”. 148 By 1588, Elizabeth I was “mistress of the most powerful navy Europe had ever seen”, 149 largely thanks to the long rehearsal of seaborne violence by depredators like Drake. Depredation, in short, laid the foundations for English maritime power.
Yet the nascent English commercial expansion spurred by merchant capital would fundamentally transform the nature of English economic power. 150 By early in the 17th century, the country had developed “a complex network of trade, involving products of many lands” and exchanged its “passive, dependent role in Europe’s trading system for an active, independent role in the world”. 151 Increasingly, piratical raiding appeared anachronistic to English imperialism. As Robin Blackburn puts it, Drake and his fellow depredators belonged “to the prehistory of English colonialism”, their “gold lust and preference for booty . . . inimical to regular commerce”. 152 Piracy, even “beyond the line”, came to be viewed as at odds with trade and England’s self-perception as a merchant nation. Maritime depredation, once handmaiden to English imperialism, was now a threat. This new attitude would soon find formal expression in the work of a new generation of legal thinkers such as Hugo Grotius, in whose hands the pirate’s universal enmity would be secularized and transformed, its threat posed no longer to a universalising societas Christiana but to a humanity increasingly synonymous with commercial society.
From the perspective of the longue durée, then, the 16th century marked a moment of world-historical transformation, conflicts over the legal identity of the pirate reflecting these underlying shifts in political economy and attendant ideological representations of world order. Religion and confessional identities, I have suggested, featured prominently in those ideological representations and in the enmity attached to the figure of the pirate, especially in the legal and literary accounts offered by Spanish writers. This is not to suggest, however, that religion was an autonomous force driving material developments or the legal production of the pirate. Rather, the 16th-century discourses traced here reflect changing and contested religious ideologies thrown up by the inter-imperial rivalries that accompanied deeper material transformations. That the enmity attaching to pirates was once religious in nature, and that it gave way to secular commercial concerns, is hardly surprising when set against world-historical developments and the transformation of social relations, of which the Catholic Church’s significant loss of material power, the emergence of merchant capitalist centres of power in Protestant polities, and the crystallisation of a capitalist world system were all part.
These 16th-century contests over the pirate also have significance for more recent international legal discourse, with its consensus around the pirate as a singular figure of enmity. The analysis offered here undermines that figure’s construction in international legal thought as a timeless enemy of humankind stretching backwards through all of human history. Instead, it emphasises the contingency of the figure’s emergence. If by the time Blackstone urged a universal war against the pirate its status as the enemy of humanity was intimately tied to commercial imperatives, such correspondence is distinctly modern, the product of a concrete conjuncture of inter-imperial rivalry and merchant capitalist interests.
In the constant rehearsal of the pirate’s perennial enmity, the history of that relationship, rooted in the emergence of commercial imperialism, is rendered invisible. Imperial interests are recast as universal concerns, imperial violence naturalised as necessary policing actions in defence of humanity. In this century, the violence of the Somali pirate directed against transnational corporate trade is criminalised and cast as inimical to civilisation. The everyday violence produced by that trade, meanwhile, is naturalised, the figure of the pirate, and the international legal thought that reifies its exceptional status, contributing to an ideological closure.
Footnotes
Acknowledgements
I’m grateful to Teresa Almeida Cravo, Susan Marks, Martti Koskenniemi and Dino Kritsiotis for comments on earlier versions of this article, as well as to the anonymous reviewers.