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BOOK RECOMMENDATIONS: Landmark Cases in Criminal Law & Landmark Cases in Public Law

LandmarkCriminalLandmark Cases in Criminal Law

Edited by Phil Handler, Henry Mares and Ian Williams

Criminal cases raise difficult normative and legal questions, and are often a consequence of compelling human drama. In this collection, expert authors place leading cases in criminal law in their historical and legal contexts, highlighting their significance both in the past and for the present.

The cases in this volume range from the fifteenth to the twenty-first century. Many of them are well known to modern criminal lawyers and students; others are overlooked landmarks that deserve reconsideration. The essays, often based on extensive and original archival research, range over a wide spectrum of criminal law, covering procedure and doctrine, statute and common law, individual offences and general principles. Together, the essays explore common themes, including the scope of criminal law and criminalisation, the role of the jury, and the causes of change in criminal law.

Philip Handler is a Senior Lecturer in the School of Law at the University of Manchester.

Henry Mares is John Thornely Fellow, and Director of Studies in Law at Sidney Sussex College, Cambridge.

Ian Williams is a Senior Lecturer in the Faculty of Laws at University College London.

May 2017   |   9781849466899   |   384pp  |   Hardback   |   RSP: £80

Discount Price: £64

Click here to order online – use code CV7 at the checkout to get 20% off!


LandmarkPublicLandmark Cases in Public Law

Edited by Satvinder Juss and Maurice Sunkin

Landmark Cases in Public Law answers the need for an historical examination of the leading cases in this field, an examination which is largely absent from the standard textbooks and journal articles of the day. Adopting a contextualised historical approach, this collection of essays by leading specialists in the field provides both an explanation of the importance and impact of the chosen decisions, as well as doctrinal analysis. This approach enables each author to throw light on the driving forces behind the judicial outcomes, and shows how the final reasoning of the court was ultimately as much dependent upon such human factors as the attitudes, conduct, and personalities of the parties, their witnesses, their counsel, and the judges, as the drive to seek legal realignment with the political developments that were widely perceived to be taking place. In this way, this form of analysis provides an exposition of the true stories behind these landmark cases in public law.

Satvinder Juss is a Professor of Law at King’s College London.

Maurice Sunkin is Professor of Public Law and Socio-Legal Studies at the University of Essex.

June 2017   |    9781849466035   |   376pp  |   Hardback  |   RSP: £80

Discount Price: £64

Click here to order online – use code CV7 at the checkout to get 20% off!

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The Right to Vote, Women’s Suffrage, and Tumultuous Petitions

history parliament

Historic Parliament

The UK’s General Election on 8 June 2017 provides a compelling backdrop for a discussion of the history of voting rights in Parliamentary elections. In particular, the struggle of women to obtain the right to vote holds a unique place in English Legal History and is worthy of discussion.

Following the Battles of Lewes in 1264 and the defeat of royal forces, Simon de Montfort (Earl of Leicester) brought together the English Parliament of 1265 consisting of, amongst others, two representatives (Knights) from each County, with the insistence that such representatives be elected. Although de Montfort was killed at the Battle of Evesham later in 1265, the idea of elected Members of Parliament persisted.

In the following two centuries, there is some debate surrounding who could exercise the right to vote in the Counties, although it is probable that all house owners resident in the County could do so, both male and female. This state of affairs continued until the implementation of the Electors of Knights of the Shire Act 1432 by Henry VI (reciting and reiterating an earlier Act of 1430) which stated that only landowners whose land attracted an annual rent of at least £2 were eligible to vote in Parliamentary elections. Although the 1432 Act did not limit the vote to men, male-only voting became customary as an extension of the social norm of men being perceived to be best placed to protect women’s interests.

Those who owned land in multiple Counties with the required value of £2 could vote multiple times, providing a powerful election tool for the wealthy landowners of the time. It was not until the Representation of the People Act 1832 that the right to vote was explicitly restricted to men, specifying ‘male persons’ in the Act itself. The 1832 Act restricted the vote to men who occupied land to the value of £10 which excluded approximately 85% of men and, of course, 100% of women. In 1780, only 214,000 people in England had the right to vote which was only 3% of the total population of 8,000,000. This number had only increased to 366,000 by 1831. The 1832 reforms did little to change the situation. Further Representation of the People Acts in 1867 and 1884 substantially increased the number of voters by extending male suffrage to all house owners. This still did not achieve universal male suffrage.

In the intervening centuries, some wealthier women landowners had voted in Parliamentary elections and there is evidence of such women appointing male proxies to vote on their behalf. Great publicity was made of the restrictions of the 1832 Act when, in 1867, Lily Maxwell voted in her local Parliamentary by-election. Ms Maxwell had been entered on the electoral register by mistake as she met the property value requirements. Ms Maxwell’s vote was later declared illegal by the Court of Common Pleas.

Although women’s suffrage was a political topic before and after 1832 Act (with the influential jurist Jeremy Bentham calling for the right to vote for women in 1817), the National Society for Women’s Suffrage was not established until 1872 and the eventually more militant organisation of the Women’s Social and Political Union was established by the Pankhursts in 1903.

Despite being well known for militant action, the suffragettes had carried out a great number of peaceful attempts to publicise the struggle for women’s suffrage. The militant action was largely in response to these peaceful attempts being ignored and undermined by men in power. Two of these peaceful attempts in particular are fascinating highlights in English Legal History.

emmeline.jpg

Emmeline Pankhurst

Firstly, in 1908, a Mr Muskett was successfully prosecuting a group of suffragettes in the Westminster Police Court. The group were sentenced to two months in prison and a £5 fine, a common punishment that was levied many times against the suffragettes. Mr Muskett warned the group that if they offended again, he would seek to use the long dormant Tumultuous Petitioning Act 1661 against them. The 1661 Act was a remnant from the time of Charles II and stated that a group of no larger than 10 people were allowed to petition the monarch or the House of Commons. If a group larger than 10 did so, they were liable to a sentence of 3 months in prison. The 1661 Act was a response to the many violent petitions brought outside the House of Commons towards the climax of the English Civil War in 1651 and which led to the execution of Charles I. The right to petition the Monarch and the House of Commons is a long established right in English Legal History and stretches back at least to the time of Henry III in the 13th Century.

The right to petition in this way was enshrined in the Bill of Rights 1689 which was seen by some as a de facto repeal of the 1661 Act. Unfortunately, the 1661 Act was not formally repealed until the implementation of the Public Order Act 1986.

Emmeline Pankhurst wished to test Mr Muskett’s assertion and the day after the successful prosecution above, she brought a group of 13 suffragettes to Parliament to petition. A prosecution under the 1661 Act would require a full trial before a jury (something the suffragettes desperately wanted as many members of the public were sympathetic to the cause of women’s suffrage), rather than a closed trial at the Police Court. Mrs Pankhurst was arrested on her approach to Parliament and tried in the Police Court. Sadly, no reference was ever made to the 1661 Act.

Secondly, much of the early suffragette work revolved around campaigning in areas where Parliamentary by-elections were taking place in an attempt to de-seat current Liberal Parliamentary members and upset the status quo. In 1908, a 34 year old Winston Churchill was promoted to the Government Cabinet by becoming the President of the Board of Trade. Any new Cabinet member had to go through a process of re-election to their constituency. Christabel Pankhurst and other suffragettes campaigned in Mr Churchill’s previously safe constituency of North West Manchester. Mr Churchill, to his shock, lost his seat to the Conservative William Joynson-Hicks by 429 votes. The day after the election, the Daily Telegraph carried the front page headline: “Winston Churchill is OUT! OUT! OUT!”.

Mr Churchill then sought election in the constituency of Dundee which was a Liberal Parliamentary stronghold seat that he would win without doubt. In any event, Emmeline Pankhurst sought to campaign against him and part of Mr Churchill’s response was to hold a women only event assuring the women of Dundee that he would seek women’s suffrage in the next Parliament. Mr Churchill won the seat. This must have proved an interesting early political tumult for a man who would go on to serve two terms as Prime Minister, one of those terms during the course of World War II.

Young-Winston-Churchill-010

Young Winston Churchill

Further campaigning and political pressure led to the introduction of the Representation of the People Act 1918 which granted the right to vote to all men, free from property value restrictions. The 1918 Act also granted voting rights to women over 30 years of age, albeit with the requirement of being a property owner. The Representation of the People Act 1928 (a mere 89 years ago) followed which granted voting rights to all men and women aged 21 and over (the then age of majority, rather than 18 as it is today), with no property ownership or value restrictions.

Interestingly, a 1948 Act of the same name abolished the English University constituencies. These were constituencies surrounding certain historic Universities (e.g. Oxford and Cambridge) and graduates of those Universities were allowed to vote both in the constituency where they resided and also in their University constituency, thereby voting twice in the same election. The 1948 Act put an end to this last vestige of multiple voting. Finally, the Representation of the People Act 1969 extended the right to vote to those aged 18 to 20 years old.

As an attempt at further Parliamentary Election reform, the Labour minority Government of 1931 introduced a Representation of the People Bill which included a provision to switch from the First Past The Post voting system (the still current UK model) to a form of Alternative Vote. The Bill was successful at the voting stages in both the House of Commons and the House of Lords but the Labour Government was defeated in the 1931 General Election before the Bill could become law. A national referendum in 2011 asked the UK public whether or not they wanted to switch to the Alternative Vote system. The switch was rejected with 67.9% of the public answering ‘No’. In 2016, Green Party MP Caroline Lucas introduced into the House of Commons the Electoral Reform Bill with a provision to change voting in Parliamentary elections to a form of Proportional Representation which would assist the smaller political parties in achieving representation in Parliament. The Bill was rejected.

In the UK’s 2015 General Election, only 43% of those aged 18-24 years old voted in comparison to over 80% of those aged 65 and over. The very youngest adults of the UK have only had the right to vote for 48 years. It has certainly been a long and long fought over road across nearly 800 years of English Legal History to achieve the Parliamentary election and voting system the UK has today. Perhaps the voting turnout from the youngest in our society in the UK’s 2017 General Election on 8 June 2017 will make its own mark in English Legal History.

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The Semantics of “Sanctuary”: Why Sanctuary Cities are no safe haven

Ben Darlow and Charlie Eastaugh*

Westminster AbbeyTalk of “sanctuary cities” has become flavour of the day in recent months, with a growing interest in their legality and—to the contrary—the unconstitutionality of federal attempts to attack such havens (as demonstrated by a January 2017 Executive Order, analysed by Garett Epps here). Volokh Conspiracy bloggers at the Washington Post have provided insightful commentary in line with the growing interest in this complicated area of constitutional law, including a helpful overview from Ilya Somin here, and executive order analysis here. This week David Post cited the English Legal History Blog, in arguing that the moniker “sanctuary” is misapplied and misleading. We will attempt to support such a claim in more detail.

Contemporary American legal context
Decades-old Supreme Court precedent gives us constitutional context for this issue. First, New York v. United States (1992) made clear that the 10th Amendment prevents “commandeering” of state governments to enforce participation in federal regulatory programmes. This was applied to the criminal context in Printz v. United States (1997), where a 5-4 majority led by the late Justice Scalia held unconstitutional certain provisions of the Brady Handgun Violence Prevention Act on similar anti-commandeering grounds.

In NFIB v. Sebelius (2012)—as helpfully flagged by Somin—federal funding conditions with the effect of such commandeering are also unconstitutional. In sum, cities (or even full states) are free to operate in a way that rejects federal cooperation, especially with respect to immigration policies and legislative requirements such as that contained in Section 1373 of the United States federal code (8 U.S.C. § 1373). Section 1373 mandates cooperation between states and the federal Immigration and Naturalization Service, and the January 2017 Executive Order has threatened to attach funds to that requirement. Making funding conditional on such strictures is likely to engage a constitutional question under the 10th Amendment (as outlined above), the 4th Amendment’s protection against unreasonable searches and seizures, and the 14th Amendment’s due process clause, which have been held applicable to “persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

The English common law privilege of Sanctuary was born out of principles that pre-date the common law itself. The basis, definition, and limitations of Sanctuary lead to the strong conclusion that the semantics of naming US immigration havens as “sanctuary cities” is at best misleading and ill-founded. At worst, it severely muddies the waters of discussion, preventing serious analysis in this important area. Appreciating the origins of common law Sanctuary is therefore vital to understanding contemporary use of the term.

Origins of Ecclesiastical Sanctuary
St. Augustine of Rome’s successful conversion of the Saxons to Christianity in the 6th Century AD introduced the idea of ecclesiastical Sanctuary to the ruling Saxon King, Aethelbert. In 597 AD—in support of his newly-adopted religion—Aethelbert introduced severe penalties for interrupting the peace of the Church. Clearly, the concept of Sanctuary at its English origin was, and remained to be until its abolition, an ecclesiastical principle and a creature of the Christian Church.

Sanctuary’s original intention in these earliest times was to protect a criminal from the devastating impact of vigilante justice at the hands of his own family and friends—fundamentally opposed to the contemporary notion of an asylum-seeker, who is likely to find refuge with those close to them. Sanctuary was used to nullify the blood feuds that wreaked havoc in Saxon communities and itself interfered with the pre-cursor to sovereign jurisdiction. William the Conqueror—upon his successful conquest of Saxon England in 1066—adopted many of the Saxon laws already in place, including those of Sanctuary. Later Norman Kings continued to support this privilege without controversy.

Around 1250, English common law was clear: a criminal could take Sanctuary in Churches; other consecrated ground; or even within the confines of a consecrated cemetery—it was fundamentally an Ecclesiastical privilege. If the fleeing criminal had no physical ground in which to take refuge, his Sanctuary began as soon as he placed his hand on the Church door. At this time, Sanctuary was still intended to give the common law legal process sufficient time to effectively run its course and not to provide indefinite refuge to criminals. It was a requirement for the criminal to admit his guilt—again drawing a stark contrast with any modern engagement of the term.

Indeed, it was a settled common law principle in the 13th Century that Sanctuary should last no longer than 40 days. After that period had ended, the Church was no longer allowed to provide food to the criminal and the authorities seeking the criminal hoped this would starve him out of his Sanctuary. Any person providing sustenance after the 40 days could be convicted as an accessory to the criminal’s original crime. Thereafter, the criminal had three options open to him. One, he could surrender, two, be exiled from the country at the escort of the authorities, or three: flee to another Sanctuary to begin a fresh 40 day limitation period. The extent to which this Sanctuary-hopping occurred is unclear, but certainly the privilege of Sanctuary was open to abuse.

Sanctuary curtailed
Over the next two centuries, due to abuses of Sanctuary, English public opinion developed to view the practice as the Church openly harbouring criminals. There are even instances of criminals in London successfully running their nefarious activities from within the confines of a Sanctuary. This abuse of Sanctuary was abhorrent to the English public and was seen as far removed from its original intentions as a safe haven from vigilante justice.

Sanctuary was later diluted in 1504 when King Henry VII successfully asked Pope Innocent VIII to allow the authorities to enter Churches and apprehend a criminal when they committed a fresh crime whilst taking Sanctuary. This was an attempt to curb the abuses mentioned above. Henry VIII followed in his father’s footsteps and initiated further reforms. A significant case in 1519 involving St. John’s Priory and Westminster Abbey (two large sanctuaries) challenged the remit of Sanctuary for murder and other heinous crimes. Henry was moved to state that: “I will have [Sanctuary] reformed which has been encroached by abuse, and brought back to the true intention of the makers”.

In 1540, the English Parliament abolished the use of Sanctuaries for the worst crimes such as murder, rape, and arson. It had already been abolished for High Treason. Following these restrictions, Henry VIII established eight Sanctuary cities where approved asylum seekers had to remain permanently. These national Sanctuaries quickly fell out of use in the reign of Henry’s son, Edward VI, in the mid-16th Century.

During his reign, Henry VIII attempted to restrict the use of Sanctuary by making it unappealing for criminals. A Sanctuary seeker had to wear a 10-inch badge on their upper arm, often had to adhere to a curfew, and had to be branded with an ‘A’ on their right thumb. A 16th Century Sanctuary became something much more closely aligned with a gulag than a haven of respite: not something the Constitutional Framers would transpose over a century later.

Following continued controversy, negative public opinion and the numerous restrictions outlined above, Parliament finalised the reform in 1624 by passing a Statute that stated “no Sanctuary or Privilege of Sanctuary shall be hereafter admitted or allowed in any case”. Plainly, 150 years prior to American Independence, the English principle of Sanctuary had been diluted into obscurity, with the original concept of a place of haven long consigned to the annals of history, excluded from the common law.

It is worth noting at this juncture that there was no mention of Sanctuary Cities (or anything like them) in the 85 Federalist Papers, nor in the 1787 Constitutional Convention. Although the Founders did describe the Capitol as a “sanctuary of liberty” and Jefferson remarked that it would be the nation’s “first temple”, no illusions were made as to the importance of federalism, the notion that states’ rights were fundamental to a successfully operating Republic, and the separation of Church and State.

Constitutional Convention

The 1787 Constitutional Convention in Philadelphia: no mention of Sanctuary Cities

Closing remarks
As the foregoing outline has shown, the common law principle of Sanctuary is an English ecclesiastical principle deriving from early Christianity. Its status as a bargaining chip between the Church and the State in the 15th and 16th Centuries led to its ultimate abolition as a common law practice, far removed from its haven-providing origin. The Philadelphia Convention of the late 18th Century included an emphatic decision to separate the Church from the State, with the Union founded on this secular basis. According to long-standing judicial precedent it is plainly unconstitutional under the republican Constitution for the federal Government to commandeer sovereign state cities for its own bidding in an unfettered way. Contemporary American usage of the term “sanctuary cities”—as has become de rigeur in modern political discourse—cannot be divorced from the historical (originalist) underpinnings of the term “Sanctuary”. To do so causes injury to tenets of federalism, constitutional law, and endangers the secularity of the debate.


*Charlie Eastaugh is a Visiting Fellow at the University of Surrey. He has a PhD in US Constitutional Law and tweets at: @inapposite
His contributions were limited to those of legal accuracy and any criticism or opinion expressed in this commentary remains that of the English Legal History Blog.

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History of the Referendum

referendum-picture

It is fair to say that the result of the United Kingdom’s Referendum on continued membership of the European Union is one of the most controversial and fiercely debated topics in modern English Legal History. Rafts of previously silent Constitutional Lawyers have entered the arena to voice their opinions.

This ferocity has been an enduring theme surrounding Referendums since the earliest discussions regarding their introduction. The central pillar of controversy is that Referendums are arguably contrary to the concept of Parliamentary Sovereignty. This is the principle that Parliament, acting by its Members and Lords, can make or unmake any law whatsoever. Theoretically, if Parliament wants to pass an Act that mandates the slaughter of all blue-eyed boys, Parliament can do so. Practically this might present difficulties, but it is correct as a matter of English Constitutional Law.

The greatest advocate of Parliamentary Sovereignty was Constitutional theorist Albert Venn Dicey in 1885. Bizarrely, it was also Dicey who first advocated the introduction of Referendums in an 1890 article, a mere 5 years after the publication of his renowned text on Parliamentary Sovereignty. Dicey believed that Referendums could act as a direct democratic check against the corruption of elected parties. Dicey stated that the people could act as ‘Political Sovereign’.

Dicey wanted a Referendum on the subject of Irish Home Rule to try to defeat Ireland’s attempt to govern itself in the late 19th Century, but he was unsuccessful. In the early 1900s, Members of the Conservative party suggested using a Referendum every time the House of Commons and House of Lords disagreed on a Bill, but this was roundly rejected. Moreover, in 1903 Joseph Chamberlain unsuccessfully suggested a Referendum on the issue of tariff reform. This reform, fittingly, was to be a departure from free trade towards imposing custom duties on foreign imports.

The other main suggestion of this era (again rejected) was made by Winston Churchill in 1910 who recommended a Referendum as a means of answering the question of Women’s Suffrage.

Over the next several decades, the idea of Referendums became increasingly unpopular in England due to their use by dictators as a tool of oppression. By way of example, Hitler held a Referendum in 1934 to effectively give himself ultimate State power. Groups of people were escorted to polling stations by Nazi soldiers and then had to vote in public. Some ballot papers were pre-ticked ‘Yes’ and forgeries were so common in some regions of Germany that the number of votes cast was greater than the total number of people entitled to vote.

The next major suggestion was again made by Winston Churchill in 1945 to answer the question of whether his Second World War government coalition should continue until Japan had been defeated. In response, Clement Atlee described the concept of Referendums as ‘alien to all of our traditions’. In the decades after the Second World War, Referendums were barely mentioned; no issue seemed important enough to warrant a Referendum. Atlee’s sentiment was echoed by Margaret Thatcher in the 1970s, however this did not dissuade Harold Wilson from promising and implementing the first ever UK nationwide Referendum in 1975.

The United Kingdom has only held 3 nationwide Referendums. The first was on 5 June 1975 to decide whether to continue as a member of the European Economic Community (now the European Union) (67.23% Yes), the second was on 5 May 2011 to decide whether to adopt the Alternative Vote system (67.9% No) and, finally, on 23 June 2016, whether to continue as a member of the European Union (51.89% No).

Over the years, there have been various regional Referendums, mostly concerning the devolution of powers to Scotland, Northern Ireland and Wales (notably the Scottish Independence Referendum of 2014 – 55.3% No).

Although nationwide Referendums were firmly rejected in the early 1900s, the argument against them was not as strong for more localised Referendums and these were carried out from 1913. For example, in 1913 local areas in Scotland held Referendums on whether to implement the prohibition of alcohol. Of particular interest is that from 1881 pubs in Wales legally had to be closed on Sundays. In 1961, local areas of Wales were permitted to have a Referendum on whether they wanted Sundays to be ‘wet’ or ‘dry’ and for further Referendums asking the same question to take place every 7 years. Sadly, the Welsh pub Referendums were abolished in 2003.

Finally, since 1972 the people of local Parish areas have been able to call for a local Referendum, called ‘Parish polls’, to answer questions on community issues. These tend to be on local planning concerns and rarely have a turnout of more than a few hundred voters.

It is clear that Referendums are not new to English Legal History but are not by any means entrenched as an English democratic principle. Indeed, a system to govern Referendums was only put in place in 2000. The Electoral Commission oversees the conduct of Referendums and consults on how understandable the phrasing of the proposed Referendum question is. The recent EU membership Referendum has been so divisive that, on hearing a challenge, the High Court has held that Article 50 of the Treaty on European Union (relating to the withdrawal of a Member State from the EU) cannot be used in the UK without an affirmative vote in Parliament.

The UK Government has stated it will appeal this judgment and we will have to wait and see what the appeal decision will mean for the future of Referendums in English Legal History. One thing is certain, party leaders are going to think very carefully before including Referendum promises in their political Manifestos in the future.

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Pirate Executions in Early Modern London

In the East London neighborhood of Wapping behind the Town of Ramsgate Pub lies a replica of a noose and hanging scaffold. This commemorates Execution Dock, most famous as the spot where pirates were hung for their crimes in early modern London.  Execution Dock was a place of execution for over four hundred years: the last execution to take place there was 1830.  Execution Dock served as the site for all fatally condemned maritime criminals, but the cruelest treatment was reserved for those to be hung for piracy.

‘A Perspective View of the River Thames’, 1780 (Photo courtesy of National Maritime Museum, PAD1370)

During the early modern period, the vast majority of criminals who awaited a fatal punishment were jailed in Newgate (now the location of the Old Bailey Central Criminal Court) and carted to Tyburn for a public hanging (now the location of Marble Arch).  Pirates and other maritime criminals, however, were instead often housed at Marshalsea Prison and carted southeast to Wapping for a public execution at Execution Dock.  Traditionally in English history, people were often executed at the place in which their crime occurred.  This was especially true with highwaymen, but over time the majority of criminal executions happened locally at Tyburn after incarceration in Newgate.  Pirates and other maritime criminals, however, still received traditional execution treatment by being carted down to the banks of the Thames. The Admiralty used Execution Dock as the symbolic location of the sea in which pirates committed their crimes.   

The High Court of Admiralty carried out the processes of pirates’ executions.  Initially established in the fourteenth century for early maritime legalities such as trade and funding overseas expeditions, the Admiralty Court had complete jurisdiction over maritime crimes by the mid-seventeenth centuries.  Once a pirate was captured, he was taken prisoner and shipped back to London to await trial and condemnation. Known as hostis humanis generis (enemies of all mankind), a pirate was immediately considered to be guilty before facing his trial.

The process of pirates’ executions had similarities to those hung at Tyburn, but there were key differences that set them apart from other criminals. As pirates were carted through the streets of London, they were led by a silver oar to symbolize the strength and authority of the Admiralty so all of London could see where the condemned were headed.  Once at the scaffold, the condemned pirate was expected to give the traditional ‘last dying speech,’ in which he would confess and atone for his crimes and warn others away from falling into his wicked way of life.  Pirates, notorious for their rebellious behaviour, sometimes used their speech as an opportunity to admonish cruel superiors.  

When this ritual was completed, the pirate would be hung by the neck until dead. However, his punishment was not a quick death. Nooses reserved for pirates were shorter than usual, causing a shorter drop and thus death by strangulation rather than a broken neck. This ritual became known as the ‘Marshal’s Dance’ because of the way the body would thrash around due to asphyxiation.  Generally, after a person’s execution, they were cut down from the scaffold immediately, but this was not so for pirates. The bodies of condemned pirates continued to hang at Execution Dock for a total of three tides to serve as a warning.  The most extreme case of this was of Captain William Kidd, executed for murder and piracy on the high seas, whose body remained strung up in the gibbets for three years to serve as a warning to other pirates.

‘A Pirate Hanged at Execution Dock’, c. 1795 (Photo courtesy of the National Maritime Museum, PAJ 0887)

Pirates were unperturbed by these gruesome warnings.  By the turn of the eighteenth century, pirates had grown so numerous that it became nearly impossible to transport captured pirates back to London because of the lack of an organized navy and the economic drain of transportation. After the British secured their Caribbean colonies from the 1670 Treaty of Madrid, which stipulated that the British would rid the seas of piracy, they decided to establish Admiralty Courts in Port Royal, Jamaica and colonial North America (Boston, Providence and Charleston). This allowed British legal jurisdiction to grab a firm foothold in their overseas colonies whilst regaining maritime order. It is no coincidence that Admiralty Courts were established in Jamaica right after the 1692 earthquake that nearly leveled the island. The complete rebuilding of Jamaica transformed the island from pirate haven to a ‘civil’ society.

The establishment of Admiralty Courts in North America had a large impact because for decades, local governors enjoyed amicable relationships with pirates until 1698. The Navigation Acts of 1660, which required all goods traded with British colonies in the Caribbean and North America to sail through England whilst barring North America from trading with other nations, encouraged smuggling and acts of piracy. Pirates would plunder ships, sell goods along the eastern seaboard and thus enjoy a bit of autonomy.  These happy privileges would end in 1698 when the Act for the More Effectual Suppression of Piracy was passed.  This Act created official legal definitions of piracy and allowed for them to be lawfully ‘examined, inquired of, tried, heard and determined, and adjudged in any place at sea, or upon the land, in any of his Majesty’s islands, plantations, colonies, dominions, forts, or factories.’  This law expanded the Admiralty’s jurisdiction to the Caribbean and North American colonies.  These new laws along with the establishment of overseas Admiralty Courts caused a rapid decline of piracy until it was virtually eradicated from the Atlantic World by 1730.

Rebecca Simon, PhD Researcher, King’s College London, Department of History

Rebecca is based at King’s College London, researching the link between pirate executions and British sovereignty in the early modern Atlantic world. Prior to coming to Kings she earned an MA at California State University Northridge where she researched perceptions of piracy through the novel Treasure Island.

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