It was after dark on a September evening. Two ships were flying along within sight of the coast, one chasing the other. Around 8 p.m., as the pursuers got close, the crew of the prey ship abandoned their vessel and fled to land. From there, they watched as the hunters took possession of their ship.

The seizure was a sober and uneventful affair, as they most often were: a group of men from the captors’ vessel rowed over to the seized ship and climbed up to the deck. After searching the ship, they took control of the tiller and sails. From the reports they filed later, the captors seemed to regard the occasion as routine. We know little about how the vessel’s former captain and crew felt, watching from the safety of the land as their livelihood fell into the hands of others. But it does not take much imagination to presume that their mood was not cheerful.

We know with certainty what happened next: the captain of the seized ship came to bitterly regret his decision to abandon the vessel. A few months after the ship’s loss, he was in court seeking the return of his vessel. Charges of illegal and dastardly behavior flew on both sides as the legal case heated up. The litigation would drag on for more than a year, as it often did in prize cases, and end up in an appeals court.Footnote ¹

The odyssey of the Notre Dame de Paix (Our Lady of Peace), as the seized ship was called, began in 1710, more than a century before John Daniels embarked on his prize-taking spree in the Caribbean and South Atlantic. It took place in another maritime zone, the Mediterranean, with a military and political configuration quite distinct from that of the Atlantic in the age of revolutions. The parties in the case were not citizens of new-born countries in the New World but subjects of two of the oldest states in Europe, France and Genoa.

In spite of these differences—or maybe because of them—the affair of the Notre Dame de Paix raises questions that converge with those around privateering, sovereignty, and empire in the early nineteenth century that run through Lauren Benton’s wide-ranging essay. One is the question of intentions: what did mariners have in mind as they acted? These intentions, in the context of privateering, could have implications for the legal meanings of their acts and the status of their sovereign. A second is about the materiality of privateering: how did the object-ness of privateering and prize law, the legal regime that governed captures of ships and cargoes, affect the way privateering functioned in practice? Both cases also pose a reflexive question about the explanatory status of microhistories and limit cases, which resonates with the problem of myth-making in the history of sea raiding.

The problem of intention flows like a troubled current through the case of the Notre Dame de Paix and Captain Daniels’s privateering. Because privateering sits squarely at the junction of individual action and state sovereignty, it refracts the legitimacy of the state through the murky waters of individuals’ mental states—and leaves a turbulent churn of legal uncertainty in its wake.

Intention, as is well known, plays a critical role in many areas of jurisprudence. A pair of familiar examples makes the point. One of the main criteria distinguishing between the crimes of murder and manslaughter, in the common law, is what the killer intended to do. The victim in both cases is equally dead. But a person who had planned to do harm, who had engaged in a form of premeditation, faces far more rigorous punishment.Footnote ² In inheritance law, one of the questions concerning an informal will—one written without the benefit of witnesses—is whether the person who made it intended it to be a last will and testament. Only if that intention is demonstrated in some fashion can the will be considered a testament with legal force.Footnote ³

The case of the Notre Dame de Paix involved at least one situation in which the legal outcome rode on a reading of the actors’ state of mind. Under the laws that governed privateering in European empires, when a crew fled from a privateer, or abandoned its ship, it created a legal presumption of guilt against the captured property. The law’s assumption was that a merchant captain with nothing to hide would allow his ship to be boarded and inspected by a privateer, who was (in theory) legally obliged to let the merchant vessel go unmolested if it was not an enemy.Footnote ⁴ As such, the fact that the Notre Dame de Paix had fled from its French pursuers and that the crew had then abandoned the ship weighed heavily against them in the court proceedings.

Thomas Bregante, captain of the Notre Dame de Paix, sought to defend the property in his care from confiscation by offering an account of his state of mind that could rebut the presumption of guilt. He alleged that the pursuers, under the command of François Bremond, had not hoisted a pennant to identify themselves as French. This was a contravention of the rules of privateering and could in itself invalidate the prize. But Bregante used this claim in a different way: given the location in the Mediterranean, he explained, the absence of a pennant had led him and his crew to assume that their pursuers were “Turks” (i.e., North African corsairs). Since North African vessels enslaved the crews of captured vessels, it was standard procedure to flee them, fight back, or (if necessary) abandon ship to save the lives of the crew.Footnote ⁵ In Bregante’s telling, in other words, the illegal behavior by the pursuers had created a belief on his part that rendered his own actions legitimate—and his ship and cargo not subject to seizure.

The shadings of mariners’ intentions could, in the context of privateering, blur sovereignty itself into an indistinct sfumato. Sovereign power is not typically thought of as depending on questions of intention. Indeed, sovereigns and would-be sovereigns are typically at pains to remove any such shadow of doubt about their intentions. When the North Americans declared their independence in 1776, they did so with the brassy assertion that they were “Free and Independent States” with the “full Power” of sovereignty. No uncertainty there. Declarations of independence in Spanish America during the first decades of the nineteenth century were similarly categorical in claiming the rights and powers of sovereignty—though in practice the establishment of sovereign power was highly contested among different groups and levels of the political society.Footnote ⁶

But privateers were also vectors of sovereignty—their campaigns of pillage were made legal by the authorization of a sovereign—and as doubt covered their intentions, it cast a shadow over their sovereigns as well.Footnote ⁷ John Daniels is a case in point. In principle, as Benton observes, Daniels and men like him could be powerful instruments for asserting the sovereignty of newly independent South American states. When Daniels accepted a commission and seized vessels, he harassed the new countries’ enemies while at the same time creating a set of legal claims that amounted to vindications of these countries’ sovereignties.

All of this came into doubt, however, when the actions of Daniels and his crews violated the letter or the spirit of the laws governing privateering. Did Daniels in fact outfit himself as a privateer on U.S. territory, in violation of U.S. law? Did he accept two privateering commissions? Did he really believe that the ships he was capturing were valid prizes, and that they could be legitimately adjudicated at Juan Griego in the Caribbean? The validity of Daniels’s actions depended on what one thought his state of mind was in relation to each of these episodes. If he had in fact sincerely intended a trading voyage when he left the United States, and only later changed his mind and turned to privateering, that might well have been legitimate. U.S. neutrality laws did not prevent a mariner from changing his mind. Similarly, if Daniels had only ever had the intention of holding one privateering commission at a time, that might make his behavior legitimate. It was not a crime to hold one privateering commission and then another. Much depended, in short, on how the courts evaluated the captain’s intentions.

By miniaturizing sovereign power, causing it to act at the level of the individual ship and cargo, privateering uncomfortably merged the creation of sovereignty into the stream of mariners’ thoughts and beliefs. In Daniels’s case, as in Bregante’s, the courts came to the conclusion that the mariners were not being honest. This led to the loss of the property that they claimed. But it also, in Daniels’s case, impaired the efficacy of privateering as a vindication of sovereignty. The result of his privateering ventures was less a resounding proof of sovereign power than a messy demonstration of sovereignty’s limits.

Just as privateering pulled sovereignty inexorably into the micro-realms of personal belief, it created an interpolity order out of claims about material objects. An interpolity order based on materiality could be powerful and cohesive. But the material underpinnings of privateering also created unexpected cracks and fissures in the very legal orders among empires that it was helping to create.

We know—in good measure from Lauren Benton’s tremendously generative work on the subject over the past two decades—that there were many ways to create an interpolity order. Formal treaties were its most familiar instrument. Fighting wars was another. But the “search for sovereignty,” in Benton’s resonant phrase, was hardly limited to such formal structuring mechanisms. Creating households and occupying space were also highly effective ways to generate sovereign power on the ground.Footnote ⁸ Cartographic and image-making processes, even when only loosely based in reality, played a role in establishing states’ claims and articulating them in relation to one another.Footnote ⁹

Sea raiding, especially the legalized raiding that was embodied by the privateering system during the early modern era, had a special place in the formation of these interpolity orders. Privateering offered a way of constructing an international order through the movement and control of things. The material character of privateering was encoded in the regime of prize law that governed it. Prize was an in rem jurisdiction in the common law world—that is, one that dealt only with objects, not persons. (It was for this reason that Daniels and the other privateersmen were subjected to separate criminal prosecutions after the prize proceedings. The prize proceedings had been concerned only with goods; their potential criminal liability for illegal behavior had to be adjudicated separately.Footnote ¹⁰)

Privateering transformed property on the seas into carriers of—and shapers of—interpolity orders. After Captain Bremond and his men had seized the Notre Dame de Paix, they found in their inspection of the ship that it was, as they suspected, carrying enemy goods. Specifically, the ship itself was of “Catalan construction,” and it was carrying a shipment of “oil” with “many letters…addressed…to Barcelona and a document printed in Spanish.”Footnote ¹¹ This was significant because at the moment that the ship was captured, Catalonia was in the midst of one of its periodic revolts against the Spanish crown. The French crown, allied with the Spanish monarchy, considered the Catalan rebels against Spain to be their enemies.Footnote ¹² By seizing this ship and cargo, the privateers were aiming to enrich themselves. Yet their capture of this ship also represented an effort by the French state, acting through private actors, to use the seizure of enemy property to reinforce the political subordination of Catalonia to the Spanish crown: an interpolity order enforced through the medium of private property.

The same general pattern, of interpolity orders created via objects, was present in John Daniels’s privateering expeditions. For Daniels, the interest of privateering was mainly pecuniary—the opportunity to gain riches for himself by taking them by force on the seas. For his state sponsors, including the Banda Oriental (roughly present-day Uruguay), the seizure of enemy ships and cargoes was of interest primarily because it delineated enemies, established alliances, and made claims (however transitory) to zones of control and authority at sea and on land. The Banda Oriental’s revolutionary leader, José Gervasio Artigas, was motivated to lump Spain and Portugal together as enemies in his privateering commissions as part of his broader efforts to simplify and clarify the murky political-military situation in the region. The idea of allowing the courts of other newly independent nations to judge prizes taken under the banner of the Banda Oriental, which was also a hallmark of Artigas’s commissions, was intended to solidify a set of alliances and common interests on the South American continent.

The strategy of creating interpolity order through objects was powerful, but it could also be messy and difficult, creating nearly as many headaches as it solved for states and their agents.

For privateersmen, the thing-ness of the goods and cargoes that they captured could severely limit their flexibility in moving through the complex landscape of inter-imperial legal orders. Daniels, for instance, seems to have been well aware that some of his seizures were questionable. As a matter of pure legal maneuvering, it would have been wise to keep away from the United States. Certainly, he understood that it was best to have the captures adjudicated outside of the United States. Yet in spite of his seemingly clear-eyed understanding of the legal landscape, Daniels repeatedly returned with ships and cargoes to the United States. Once he was there, both he and they would be subject to the jurisdiction of U.S. courts. Why did he take this kind of risk?

For Daniels, the lure of returning to the United States was largely about securing the best deal that he could for his captured cargoes. Though Juan Griego or elsewhere in the circum-Caribbean might be a fine place to have his cargoes condemned, if he wished to profit from them, he had to bring them to markets that had both the demand and the capacity to process them. A ship full of cotton, tea, ginger, and other goods, like the Globo, was only valuable inasmuch as one could find a commercially advantageous locale in which to sell it.Footnote ¹³ For Daniels, this place was the United States. The commercial logic of finding markets, in other words, trumped the legal logic of most efficiently navigating the existing legal orders.Footnote ¹⁴

The pull of markets and other port-city institutions could extend even to that most fungible of materials, precious metals. One of the stock images of the romance of piracy is the chest of precious metals or gems buried on a remote island. This image is crucial because it imagines pirates as somehow able to exist outside of the ambit of normal human society. The fictive chest of buried treasure is a physical manifestation of the pirates’ supposed ability to withdraw from empires and states, to live in a state of near-absolute autarky.Footnote ¹⁵ Yet as the case of the Gran Para shows, even when a privateer did get his hands on a heap of treasure, his course of action was not to bury it on a remote island but to make a beeline for a bank in a major port. (In Daniels’s case, the Marine Bank of Baltimore.) Part of the reason for doing so was that gold and silver, like other goods, needed to be “put to work” in order to be profitable. Another reason was that Daniels trusted this bank in particular to hold his captured wealth. Daniels’s commercial connections in Baltimore made the U.S. port city the logical place for him to deposit his wealth in spite of the obvious legal risks that it entailed.Footnote ¹⁶

Seen from this angle, the thing-ness of the privateering enterprise could work to the advantage of some states’ efforts to create interpolity orders—while thwarting others. By spurring Daniels to bring his prizes back to North America, this dynamic gave the U.S. government multiple chances to adjudicate Daniels’s prizes. As the U.S. judiciary did so, as Benton shows so persuasively, the United States gained the ability to declare and also enforce its vision of a new kind of interpolity imperial order in the Americas. By contesting the seizures of their ships in the U.S. courts, the Spanish government participated actively in the construction of this new order—contributing to the eventual Adams-Onís treaty. The results for Artigas and other South American sponsors of privateering were less favorable. The lure of U.S. markets and institutions effectively removed the privateer and its prizes from their jurisdiction, leaving them on the sidelines of the construction of the new interpolity order.

From another angle, however, the thing-ness of privateering posed an equally difficult challenge to all of the states and sovereigns who were trying to use it to generate interpolity orders. When the captors of the Notre Dame de Paix brought letters and printed documents before the court as evidence of the enemy character of the ship’s cargo, they were engaged in one of the most essential and most difficult tasks of privateering: proving that a captured object belonged to the subject of an enemy sovereign. As was often the case, the evidence was somewhat at an angle to what it was supposed to be proving. The “letters” and the Spanish-language “document” were hardly definitive proof of enemy ownership; either could have had a perfectly innocent explanation. As became clear later in the proceedings, the captors had anticipated this problem. When Thomas Bregante sought to have witnesses heard to show that his cargo was not enemy property, he discovered that the captors had dispersed his crew, “sent them to sea,” thus preventing him from producing witnesses on his side.Footnote ¹⁷

As Bregante and Daniels both knew, there was a kind of triangular relationship at the heart of the privateering enterprise, among polities (sovereign sponsors of ships), individuals (mariners, property owners), and a variety of objects, which included both ships and cargoes themselves and the sheaves of documents and intermediate objects that worked to tie objects to people and people to sovereigns. Each one played a role in constituting the others. Sovereigns constituted individuals as legitimate seafarers or as legitimate commerce raiders. These individuals then constituted things as legitimate objects of commerce—or, in the case of privateersmen, as objects of illicit or enemy trade that could be legally seized. The objects and their penumbra of papers and physical signs, as they were painstakingly connected back to individuals and to sovereigns, could then constitute both the sovereign and the legitimacy (or not) of the merchant or raider. Thomas Bregante was firmly enlaced in this process when he argued that his ship was not of Catalan but “Genoese construction” as proven by the “construction certificate [l’acte de construction].”Footnote ¹⁸

The Daniels prizes, like the Notre Dame de Paix a century earlier, show that the process of making these linkages—and in the process creating interpolity orders—was far from smooth. The very different fates of the Portuguese and the Spanish cases arising from Daniels’s raiding were due in no small measure to the Portuguese government’s success in placing the Portuguese-flagged ships firmly under their sovereign umbrella. Since the argument for Portugal as an enemy power was weak, these prizes were fairly quickly ruled invalid. The Spanish-flagged ships, even the one that had been a naval vessel, proved much harder to shield from condemnation. The legal arguments the Spanish were forced to make were much more complex, invoking international law to attack the sovereignty of the sponsors of the privateering, with uneven success.

Overall, the thing-ness of privateering complicated its function as an instrument for creating interpolity orders. Because it injected private parties and private property into the heart of the emerging order—not to mention difficult questions about how to establish ownership of specific ships and goods—the ordering it could accomplish was usually somewhat akilter and unstable. It could readily lead, as in the case of Daniels’s prizes, to extremely convoluted arguments that certain states were partial or incomplete sovereigns. Or, as in the case of the Notre Dame de Paix, it could involve an argument about where a ship was constructed, which pitted the captors’ expert eye against a piece of allegedly definitive paperwork. In this world of uncertain ownership, sovereignty and the relations among sovereigns were in a state of near-constant flux.

Over the past decade or so, historians working on global and transnational subjects have turned in growing numbers to the practice of microhistory. These “global microhistories,” as some have dubbed them,Footnote ¹⁹ offer an enticing methodological instrument for scholars aiming to work on a macro canvas without losing the micro evidentiary and analytic lens that is characteristic of historical scholarship.

For legal historians, there is nothing new about using micro analysis of a case to explore macro-level phenomena. The analysis of individual legal proceedings has been a foundational practice of socio-legal history since its beginnings, and in particular since it emerged as a significant subdiscipline in history during the 1970s and 1980s. Indeed, legal history was in some respects foundational to the entire microhistorical enterprise: it is no accident that some of the leading practitioners of microhistory, from the late 1960s onward, focused their attention on legal proceedings.Footnote ²⁰

Whether we consider it new or old, however, the microhistorical method always raises the same nagging question: to what extent can a single case or affair, however dramatic or wide-ranging, inform us about wider historical processes? The skeptic wonders whether is it not the case that historical explanation of large-scale phenomena—such as the rise of empires or imperial orders—must rest on an equally large-scale evidentiary base?Footnote ²¹

I am not one of these skeptics—or if I have skepticism about this method, it is a friendly doubt. One reason for my faith in the method is that the micro in these microhistories is not really so small or so isolated. Benton’s analysis of Daniels’s privateering career rests on a whole series of interlocking cases, which took place under different jurisdictions, mobilized different kinds of legal regimes (criminal versus property law, for instance), and involved a variety of legal actors. This broader base gives confidence that the kinds of interpolity ordering that were taking place through prize adjudications were not exceptional to one case but were in fact an integral part of the legal regime writ large.

The Notre Dame de Paix, similarly, was far from an isolated case. It was one of nearly one thousand ships adjudicated by the French Conseil des Prises (Prize Court) in 1711 alone. (Most likely a similar number of cases were heard in the British and Spanish prize courts in that year.) The record in the longer term is even more imposing. The Conseil des Prises adjudicated something on the order of 100,000 prizes between the end of the seventeenth century and the beginning of the nineteenth. This scale, too, provides reassurance that what happened in an individual case was not an isolated occurrence but an instance of a much larger process.Footnote ²²

A clear-eyed view of the scale of privateering helps us as well to see past the persistent romance of piracy. Daniel Defoe’s spicy, breathlessly readable General History of the Pyrates, published in 1724, established the foundational myth of the swashbuckling pirate adventurer. Its form, a series of gripping anecdotal biographies, gave outsized importance to a handful of individuals and their allegedly dastardly deeds. No amount of showing that these original pirates were in fact often state-sponsored actors ever seems to be sufficient to put the myth to rest.

Whatever they were, though, the sea-raiders of Defoe’s day were a handful of individuals. What a vanishingly small group they really were becomes clear when they are set alongside the tens of thousands of mariners who sailed with legal commissions and dutifully brought their prizes back to port for adjudication, year after year, throughout the seventeenth, eighteenth, and early nineteenth centuries. Men like Captain Daniels or Captain Bremond. Even when they skirted the law, or played loose with its rules, they were in no way dissenters from the legal orders of the day or seeking to remove themselves from human society. Hard as their intentions might be for the courts to divine, difficult as it might be to discern the attachments between the objects they seized and the sovereigns they served, they were undoubtedly participants in the co-creation of a shared legal world.