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[Peter Leeson, guest-blogging, May 20, 2009 at 7:59am] Trackbacks
A Preposterous Suggestion: Of TJ, Pirates, and America's Founding

In the course of doing interviews on The Invisible Hook over the last several weeks I've had a number of people ask me if I thought America's Founding Fathers might have been influenced by early 18th-century pirates in framing the United States government.

Before you laugh, let me explain . . .

In the book I analyze early 18th-century pirates' system of social organization, the basic principles of which are, in several important respects, I suggest quite similar to those of our own.

The centerpiece of pirate governance was a system of constitutional democracy. Before launching a plundering expedition, each crew drew up a written document that stipulated the rules that would govern its members while the pirates remained together. These "articles" also empowered the chief pirate officer--the quartermaster--to enforce the rules, administer proscribed punishments, divide the booty, and so forth. Critically, by making many of these terms explicit, pirate constitutions not only empowered the quartermaster in these duties but also constrained him. He was not free divide plunder anyway he saw fit, for example, arbitrarily bestow social insurance payments on pirates he liked (pirates had an early system of workers' comp), or punish lawbreakers willy-nilly.

In addition to such "constitutional checks" on the quartermaster, pirates also exerted democratic checks on his behavior. Pirates popularly elected the quartermaster and could, and did, democratically remove quartermasters who overstepped their bounds or otherwise acted in ways at odds with the other crewmembers' interest.

The quartermaster also exercised his authority within the context of a system of piratical separation of powers. While the quartermaster wielded command in cases such as those described above, he wielded no command in times of conflict with potential prizes. Authority in these cases fell to the captain, the other central pirate officer, who pirates also democratically elected and deposed. Notably, pirates' democratic mechanism for this and other purposes was also established in their constitutions.

The chief pirate officers--the captain and quartermaster--not only had countervailing authorities, they also competed with one another. When pirates deposed an ineffective or otherwise unsuitable captain from command, they could, and sometimes did, elect the quartermaster to this post in his place.

Further, in some cases pirate crewmembers exercised a kind of "judicial review" authority. Where their articles were unclear or silent on certain matters, pirates gathered to interpret and apply the ship's constitution to the case at hand.

Many of the fundamental features of pirate's governance system should sound familiar to those acquainted with America's governance system. They're not the same, of course. But several of the basic institutions appear to be there, albeit in more rudimentary form.

Perhaps even more strikingly, the basic reason behind pirates' system of checks and balances is fundamentally the same reasoning behind our system of checks of balances: to simultaneously empower and constrain those we endow with the authority to rule over us.

To keep their criminal enterprise from breaking down, pirates needed "leaders" who could maintain order among them and make certain decisions on behalf of the whole (such as during battle), but could also be prevented from abusing the power crewmembers vested in their hands for this purpose. Pirates were especially wary of this possibility, most of them having formerly sailed as legitimate sailors under the autocratic, and thus often abused, authority of merchant ship captains.

As one pirate put it, "Most of them having suffered formerly from the ill-treatment of Officers, provided thus carefully against any such Evil now they had the choice in themselves . . . for the due Execution thereof they constituted other Officers besides the Captain; so very industrious were they to avoid putting too much Power into the hands of one Man."

Pirates confronted essentially the same dilemma in setting up their system of governance that James Madison famously described in Federalist 51. As Madison put it, "But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Madison's solution to this dilemma was constitutional democracy. "A dependence on the people," Madison argued, "is no doubt, the primary control on the government." "[B]ut," he continued, "experience has taught mankind the necessity of auxiliary precautions." "[T]he constant aim is to divide and arrange several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights."

This was pirates' solution as well--but they forged it more than half a century before Madison put pen to paper. Pirates, of course, weren't the first to invoke this solution. And there's good reason to think that some of the legitimate world's early experiences with democracy, separated powers, and so on, may have influenced pirates' system of governance.

But could the direction of influence have also run the other direction? This is the question I began with. And while, unsurprisingly, I've yet to come across direct evidence that any of our Founding Fathers looked to pirate governance in forging America's system of government, it might be too hasty to totally dismiss this suggestion as well.

I did a quick look to see if there might be any evidence that any of the Founders were even aware of pirates' governance regime . . . .

And there is. Thomas Jefferson owned a copy of both of the two most important late 17th-century and early 18th-century books that describe pirate governance, Alexander Exquemelin's Buccaneers of America, and Captain Charles Johnson's General History of the Pyrates.

Does this prove that pirates' constitutional democracy influenced Jefferson? Of course not. For one thing, Jefferson had many books in his personal library. That doesn't mean all of them played a role in his thinking about American government. Further, I don't know when Jefferson acquired these books. His copies were published (in 1774) before the Declaration of Independence; but that doesn't tell us when Jefferson bought or read them.

But, at least in principle, it does suggest TJ could have "had a little captain in him." The mere prospect is tantalizing enough for me . . .

http://volokh.com/?exclude=davidb :
It might be equally interesting to determine if Madison had a copy of either of these books. He is known to have engaged in a period of intensive research on systems of governance, before riding off to help write the Constitution.
5.20.2009 8:12am
Richard Nieporent (mail):
Peter, do you really believe this romanticizing of pirate life? Why would you expect that everything written in those books to be true? How would all pirates know of these rules? More importantly, even if somehow all pirates knew of these rules why would they all agree to them? Do we have 100% agreement with the rules of our society? Why would you expect that pirates, people who had no qualms about violating the rights and life of others, to be able to live by a strict code of ethics that people in normal society are unable to do so? Why would you believe that the captain of a normal ship could be a tyrant but a captain of a pirate ship would be a democrat who would only govern with the consent of the governed? The pirate society you describe violates everything that we know about human nature.
5.20.2009 9:38am
ChrisIowa (mail):
How would such a crew get together in the first place? Someone would have to provide the ship. The must have been some reward for that capital investment, or it wouldn't have been done.
5.20.2009 9:45am
Aultimer:
If the literacy rate on pirate ships was as low as I suspect, a quartermaster who could read and the captain and/or junior officers may have been the only ones able to read the "constitution". Given the extra-legal nature of their endeavor, there would be little to prevent collusion among the literate against the crew.
5.20.2009 10:11am
liberty (mail) (www):
Richard Nieporent,

The constitutions are ship by ship; and people lived by them because they agreed to them for economic reasons. The incentives were lined up. The Merchant ships did not use such rules because their incentives were different: government granted them the monopoly to be tyrants and do as they pleased, without worry of losing profit on the deal, as pirates would.

Aultimer,

But the crew could have it read to them before signing on, and the reputation of ships where the literate took advantage of the crew would be bad. They wrote the constitutions intending to follow them, because it made economic sense. That, I think, is the point of Pete's book.
5.20.2009 10:16am
ChrisIowa (mail):

Why would you believe that the captain of a normal ship could be a tyrant but a captain of a pirate ship would be a democrat who would only govern with the consent of the governed? The pirate society you describe violates everything that we know about human nature.

The Captain of a merchant vessel would not necessarily be a tyrant, but there was nothing to stop him from being one, if it is true that as a I read somewhere in a thread on the Somali Pirates, the crew was unarmed. Since the mission of a Pirate ship would require that the entire crew be armed to project the greatest strength, some other method had to be found to prevent mutiny. This democracy thing would ensure that most of the crew was behind the captain. In modern corporate terms it got the "buy in" of the crew.
5.20.2009 10:20am
methodact:
What an epiphany. Their system sounds brilliantly pragmatic in dealing with greed.

Yet look at the unbridled greed in our own system where the New World Order is simply a shadow that most dismiss as not even being there, that sucks up and hoards the wealth of nations and loans it back at usury terms.

Or it manipulates a borrow-and-debt economy so large that it becomes almost like a black hole, where perhaps physicists are needed to explain it as we approach the singularity at the event horizon.
5.20.2009 10:22am
Oren:

How would such a crew get together in the first place? Someone would have to provide the ship. The must have been some reward for that capital investment, or it wouldn't have been done.


I'm sure the specified distribution of the bounty was in line with what was needed to ensure capital investment.
5.20.2009 10:38am
Richard Nieporent (mail):
"liberty", do you really believe that the same person who has no qualms about breaking society's rules by pillaging and plundering would otherwise be willing to live by a strict moral code. Do you not think that there may be a "small" character flaw in an individual who was willing to make his livelihood this way? What would stop them from breaking the rules of the pirate society? Do you know of any other society where nobody breaks the rules?
5.20.2009 10:44am
Andrew Maier:
Richard:

The idea isn't that they lived by a 'strict moral code' for its own sake, but that adhering to an agreement between themselves was mutually beneficial. They can be totally flawed characters and still abide by it, since the important factor is that it is beneficial. Abiding by the murder and theft laws of society? Not so much for these guys.
5.20.2009 10:52am
Richard Nieporent (mail):
I find this discussion to be fascinating. There appears to be people who want to believe that a utopian society can exist where everyone follows the rules and where there is justice for all its members without the need for police, courts and lawyers. I too would like to see a society without lawyers (just kidding, just kidding), but I'm afraid such a society only exists in people's imagination.
5.20.2009 11:06am
Scape:
Richard, your arguments remind me a little of state behavior under international law. Some states can certainly be said to "ha[ve] no qualms about breaking society's rules" under international law, and have little respect for the laws provided by such a system, and yet they do maintain and adhere to their own internal set of regulations. The adherence may not be perfect, and may be marked by corruption, but it is at least regular enough to be recognized as a legal code.
5.20.2009 11:09am
Sean O'Hara (mail) (www):

"liberty", do you really believe that the same person who has no qualms about breaking society's rules by pillaging and plundering would otherwise be willing to live by a strict moral code.


What a totally crazy idea. That'd be like a bunch of slave-owners creating a liberal democracy based upon the principle that all men deserve equal protection before the law.
5.20.2009 11:10am
Lunadeartemisa:
Richard:

It's impossible to have everyone obey the rules, but what you need is to have punishment for those who break them. You have the option to choose to break the rules, but that means you are choosing punishment as well. If a system like this can exist, you don't need everyone to live "a strict code of ethics", which is obviously a fantasy.
5.20.2009 11:15am
Lunadeartemisa:
Sean O'Hara:

Is not about morality, is about incentives that maintain a system working.
5.20.2009 11:17am
Lunadeartemisa:
Whether is a system that encourages morality or a system that steals like the Pirate's system
5.20.2009 11:22am
Bill Harshaw (mail) (www):
If we can credit the Iroquois for the Constitution, why not the pirates?

Personally, I believe the long experience (150+ years) of democracy in church by the Puritans/Congregationalists/Presbyterians of England/Scotland/Ireland is more relevant than either, but then my ancestry makes me prejudiced.
5.20.2009 11:23am
Alan P (mail):
Or maybe we're just seeing that similar problems produce similar solutions in the natural world and in different human societies
5.20.2009 11:46am
PeterWimsey (mail):
From an early draft of the declaration: "We believe that all men ARRRRR created equal." :)

I don't think that the idea of a written document establishing shipboard rules was unusual for the time. Royal Navy ships at the time were governed by the Articles of War, which were required to be read at the beginning of a ship's vessels and every month or so thereafter. (The reading aloud also deals with the illiteracy issue.)

However, the idea that "each crew drew up a written document that stipulated the rules that would govern its members while the pirates remained together" doesn't quite ring true for me, at least the the extent that "crew" means "everyone working on the ship." It's not like there were an infinite number of ships available for any arbitrary crew to use once they reached an agreement.

It seems much more likely that the ship owners, or maybe a couple of key crew members, drew up the document and then informed potential recruits that these are what the rules would be.
5.20.2009 12:00pm
geokstr (mail):

PeterWimsey:
It seems much more likely that the ship owners, or maybe a couple of key crew members, drew up the document and then informed potential recruits that these are what the rules would be.

And this act of informing was likely after they'd set sail (or "ex post facto" as I've learned from this blog that lawyers like to say) and the crew in this "democracy" didn't really have a lot of say about it short of becoming shark bait.
5.20.2009 12:06pm
Richard Nieporent (mail):
It's impossible to have everyone obey the rules, but what you need is to have punishment for those who break them. You have the option to choose to break the rules, but that means you are choosing punishment as well. If a system like this can exist, you don't need everyone to live "a strict code of ethics", which is obviously a fantasy.

Lunadeartemisa, yes what you say is true. However, the point I was trying to make is that people who became pirates were not idealists but rather people who were looking to make more money than they could with a normal job. That is the same reason why people join criminal gangs today. Obviously there must be a set of rules that they obey such as paying for the drugs they sell. But that is far different than having a utopian society.
5.20.2009 12:11pm
fishbane (mail):
A lot of people arguing that pirates couldn't have an a voluntary self-governing system reminds me of an old economics joke.

An economics professor and a student are walking across campus. The student sees a $20 bill on the ground and says, "professor, there's $20 on the ground." The professor replies, "nonsense, if there were, someone would have picked it up."
5.20.2009 12:20pm
LarryA (mail) (www):
However, the idea that "each crew drew up a written document that stipulated the rules that would govern its members while the pirates remained together" doesn't quite ring true for me, at least the extent that "crew" means "everyone working on the ship."
Actually, we see this process working all the time, right here in the U.S. of A. A group of people decide to start a garden club, a gun club, a gin rummy club, whatever. They get together and set up a constitution, write bylaws, elect officers, etc.
It seems much more likely that the ship owners, or maybe a couple of key crew members, drew up the document and then informed potential recruits that these are what the rules would be.
I'd think it much more likely they'd do what the abovementioned groups do. Look around, find a set of rules that was working well, and mainly copy them. Tweak the details so they fit the particular enterprise being undertaken, and learn by experience.
And this act of informing was likely after they'd set sail (or "ex post facto" as I've learned from this blog that lawyers like to say) and the crew in this "democracy" didn't really have a lot of say about it short of becoming shark bait.
I don't think so. If you're the captain or officer of a ship, out in the middle of the ocean, with no means to communicate with anyone else, no appeal to higher authority, and a crew of criminals, you darn well better be popular. Even if you have the law and tradition of a royal navy to back you up, you better be at least tolerable. See: HMS Bounty, Captain William Bligh, former commander.
5.20.2009 12:32pm
einhverfr (mail) (www):
Well, I think that the primary sources of our Constitution were clearly early Anglo-Saxon and Roman Republican in nature. It doesn't take a structural anthropologist to see the parallels.

This being said, piracy was clearly a major force at the time, and it wouldn't surprise me if the existence of democratic institutions among pirates lead to a greater realization that a government without a monarch was a viable option.
5.20.2009 12:35pm
TRE:
I think mercenary bands in general probably behave like this.
5.20.2009 1:55pm
18 USC 1030 (mail):
This is the quintessential Hobbesian Social Contract they are each limiting their "rights" as they believe those rights exist in order to preserve themselves. Or, more specifically, their economic interests.
5.20.2009 2:15pm
Soronel Haetir (mail):
It's also probably easier to enforce in a democratic rather than republican form. Enforcing rules against theft among crew is likely far easier when the entire polity actually agrees to the rules as stated.

Plus you have the added factor that voting with your feet was actually a viable option.
5.20.2009 4:55pm
DennisN (mail):
There are plenty of examples of informal rules in criminal organizations. Every gang has them. The cardinal Rule is Loyalty To The Gang. That is enforced by fellow gang members because they believe it. And it's enforced ruthlessly.

The other rule is Don't Steal From Your Fellows. That's also easy to enforce, because if you are stealing from him, you are stealing from me. In reality, it may be more like, "Don't steal too much."

Fighting on Shipboard would be discouraged, because unnecessary casualties weaken us all, and things go wrong really really fast at sea. Wait til we get ashore and settle it with knives if you want.

There is leadership, or there is no gang. Usually, leadership is enforced by personal toughness, charisma, and joint self interest. Are there revolts? Look at the history of motorcycle gangs in the US. There are few formal revolts at the highest level, and a lot of infighting in the middle. Revolts at sea, where only the captain knows navigation, might be a little more rare, even if he is disliked.

Division of spoils would be important to agree to before you set sail. I suspect there would be traditional formulas for this. The fishing industry uses them to this day. There are a certain number of shares for the ship, a certain number for the Captain, a lesser number for Officers, a still lesser number for Warrant Officers (carpenter, sailmaker, master gunner, etc.) The crew would be divided into Full Share Men, and perhaps Half Share Men. The Captain would be a critical element, because he has the ability to manage the ship, and the contacts to sell the plunder. Where does an average seaman sell fifty bales of linen?

Pirate voyages are short compared to naval enlistments. The general way to deal with unpopular skippers (or even worse unlucky ones) is to sign onto a different ship for the next go, if you can find a berth. I suspect berths aboard are limited, so a good skipper would have his pick of men in port.

Beyond that, I suspect there were few actual rules. Considering that cities like Port Royal were sinks of iniquity, I doubt there would be much control over social niceties like smoking or drinking, fanciful literature notwithstanding.

Outside a few famous pirates with large operations, I suspect the more typical penny-ante operation's rules were more like, "Three shares for the boat, Two for the Captain, and one for everyone else. Are youse guys in? Then we sail on the tide. Drink up Boys!" Or you might have to buy in to outfit the craft.

Heinlein may be our best guide to "How it really was."
5.20.2009 5:21pm
methodact:
It seems it has become customary for politicians to make empty campaign promises in exchange for votes, (a fraudulant contract). People grow disaffected and object, "but this is not what I signed up for", especially where the untruthful pol's capture of an office is for purposes of categorically changing the very nature of the government of the community, or state, or nation and for which the office-holder uses it instead, to grab more wealth and/or power, thus disenfranchising those voters. Perhaps that explains why "Locke theorized the right of rebellion in case of the contract leading to tyranny." (Wikipedia)
5.20.2009 5:30pm
dave zimmerman:
I had always thought of the floundering fathers as petty smugglers and black marketeers. But red-blooded brethren of the sea? Smoking some of GW's hemp? It all comes together now.
5.20.2009 5:32pm
ohwilleke:
Adding to the stew, there is some indication that many of the strongest backers of the new republic were smugglers who had chaffed under English economic restrictions and that this was also behind the 4th Amendment in part.

There are other pretty notable democratic precedents. There was, of course, democratic colonial era government (all the way back to the Mayflower Compact), DeTocquville writes about the proliferation of democratically run civil society groups, and militias had elected officers and were somewhat autonomous.
5.20.2009 5:33pm
DennisN (mail):

Perhaps that explains why "Locke theorized the right of rebellion in case of the contract leading to tyranny." (Wikipedia)




Well our working season ended,
And the drover would not pay,
If you had not drunk too much,
You are all in debt to me.
But the cowboys never had heard,
Such a thing as a bankrupt law,
So we left that drover's bones to bleach,
On the Plains of the Buffalo.

- Woodie Guthrie Buffalo Skinners
5.20.2009 5:35pm
AJK:


Plus you have the added factor that voting with your feet was actually a viable option.



Not after you set sail!
5.20.2009 8:08pm
DennisN (mail):
AJK:


Plus you have the added factor that voting with your feet was actually a viable option.

Not after you set sail!



This is apparently an old problem, and not restricted to Piracy. The term "Shanghaied" comes to mind.



I was broke and out of a job in the city of London;
I went down to the Shadwell Docks to get a ship.

[CHORUS]
Paddy, get back, take in the slack!
Heave away your capstan, heave a pawl,
Heave a pawl!
Bout ship and stations, there, be handy,
Rise tacks 'n sheets, 'n mains'l haul!

There was a Yankee ship a-laying in the basin.
Shipping master told me she was going to New York!
[CHORUS]

If I ever get my hands on that shipping master,
I will murder him if it's the last thing that I do!
[CHORUS]

When the pilot left the ship the captain told us
We were bound to Callao around Cape Horn!
[CHORUS]


- Traditional Sea Shanty


Note that the murder would take place on land, after the voyage. Mutiny seems to be a very rare act, even in the non-military world where the savagery of the Articles of war didn't apply. Even pirates were fearful of the dangers of mutiny; with or without any sort of Pirate Code.
5.21.2009 4:03pm
comatus (mail):
The base of English piracy against French colonies, according to the French, was Nevis. And that is where Alexander Hamilton was born, and served his trade apprenticeship. Also, one William Kidd was reputed to have been an early member of the New York Stock Exchange.

Thank you for these blogs. Clearly "The Invisible Hook" is a book that needed to be written: I had no idea that lawyers knew so little about pirates. Who'd have thunk?
5.23.2009 6:46pm

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