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The Best Weapon Against Pirates? Lawyers.

Blackbeard Call it Blackbeard meets Blackacre. In the early part of the 18th century, in the glory days of peg-legged, hook-handed pirates, it was not naval prowess that sunk their ships so much as the threat of lawyers nipping at their heels. "Most important in bringing pirates to their end was a series of early 18th-century legal changes that made it possible to effectively prosecute pirates," writes Peter T. Leeson in a fascinating guest post at The Volokh Conspiracy.

Leeson is an economics professor at George Mason University in Fairfax, Va., and author of the book, The Invisible Hook: The Hidden Economics of Pirates. At a time when piracy appears to be on the upswing, his post -- and, no doubt, his book -- provides interesting perspective on how best to battle piracy on the high seas.

Well before the 1700s, England tried siccing lawyers on pirates, but with limited success. Before 1536, England tried pirates in admiralty courts under civil law. But convictions proved hard to come by, given the law's requirement that the accused either confess guilt or be identified by two eyewitnesses. A 1536 law loosened the elements of proof and was moderately more successful in obtaining convictions. But colonial governments were uncooperative in paying the costs to ship captured pirates back to England for trial.

All that changed in 1700, with a law that permitted colonial governments to try and execute pirates on location. "No longer constrained by the need to send pirates to England for trial, the 1700 law proved to be a critically important legal change for bringing pirates to justice," Leeson writes. What is most interesting is why this law was effective and how pirates tried to exploit a loophole.

The "why" might not be a total surprise, given that Leeson is an economist, not a lawyer. The law did not so much scare pirates into going straight as it did increase the booty required to operate their unlawful enterprises. Pirates were forced to spend more money on the legal defense of their crew members while also finding it more and more difficult to recruit new crew.

Somewhere along the line, some clever pirate lawyer lifted his looking glass and spotted a loophole in all this. No man could be convicted who could show that he was forced into piracy. How might they show this? Why, take out an ad, of course.

An ad of force was a newspaper ad, published by an allegedly conscripted sailor’s released captain or fellow seamen on behalf of their forced compatriot, publicly certifying that the sailor had been "forced against his will" to join so-and-so’s pirate crew on this such-and-such date, etc. If this pirate crew was ever captured ... the ostensibly forced sailor could point to his ad in his defense at his trial and the court might consider this evidence for his claim, thus increasing his chances of being let off.

These ads resulted in at least some pirates getting off the hook, so to speak. The lesson for modern times, Leeson suggests, is that if lawyers come after pirates, pirates may fight back with lawyers of their own, "manipulating the law as the law seeks to manipulate them." Leaving lawyers to shiver in their timbers.

Posted by Robert J. Ambrogi on May 22, 2009 at 01:38 PM | Permalink | Comments (1)

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