The Pirate, the Sovereign, and the Subject: Old Enemies and New Problems in the Face of Maritime Modernity (1890–1939)

In the last third of the nineteenth century, the seas radically changed. From the end of the 1870s onwards, Western-controlled steam and later diesel shipping established its global hegemony as the driving force of maritime mobility. Ironclad and motorized ships liberated shipping from the vagaries of the currents and monsoon winds. For the first time, they enabled precise schedules and furthermore massively increased transport capacities and speeds.¹ This also produced unintended consequences. Lower Hajj costs led to a surge in pilgrim numbers and heightened the risk of global epidemics, such as cholera. Expanded capacities likewise intensified the movement of goods deemed dangerous by European empires, such as firearms to the East African coast.² The combined effect was a broad devaluation of existing expertise, while rapid advances in mobility and communication reshaped expectations of maritime regulation. In short, European empires had to relearn how to read, identify, and secure ships, coastlines, and maritime mobility.

One of my three case studies examines how a new form of maritime violence in the waters around Hong Kong challenged European empires from 1900 onwards. My GHIL scholarship allowed me to visit British archives that hold a plethora of valuable documents on this under-researched story. This form of violence forced the British Empire in particular to rethink a centuries-old imperial bogeyman: the pirate.

Piracy is one of the oldest legal concepts in maritime and international law, and continues to play a crucial role today. Cicero described pirates as communis hostis omnium (common enemies of all). In 1615, the British judge Lord Coke drew on this idea when he defined pirates as hostis humani generis—enemies of all mankind, over whom every state had jurisdiction, regardless of the flag under which they sailed. This definition proved highly influential: it was central in establishing piracy as the first international crime under international customary law and in formulating the principle of universal jurisdiction, whereby states may claim jurisdiction irrespective of the perpetrator, victim, or place of the crime. This legal fiction later enabled, by analogy, the extension of universal jurisdiction to new international crimes in the twentieth century, such as crimes against humanity. The Jerusalem District Court, for example, relied on the pirate analogy to assert jurisdiction over Adolf Eichmann.³

What initially appears to be a long and straightforwardly heroic tale of international law proves, on closer inspection, far more complex. Although the legal fiction of pirates as hostis humani generis claimed universality, its application rested on the specific municipal laws of the enforcing states. The power to define who counted as a pirate and who belonged to a legitimate fleet thus largely lay with European colonial empires. In South-East Asia, for example, they used this power to legitimize the colonization of local communities and polities while often ignoring their own pirates. Lauren Benton sums it up concisely: ‘For most of their history, pirates had to be the enemies of some before becoming the enemies of all.’⁴

The story is further complicated by the technological transition from 1870 onwards, and especially by a novel and under-researched form of maritime violence. In the area around the British colony of Hong Kong, a form of depredation emerged around 1900 that gained momentum from 1914 onwards and reached its peak in the second half of the 1920s.⁵ European contemporaries came to view it as a new kind of ‘internal’ piracy, and it was emblematic of the long transitional period of maritime orders between the 1870s and the late 1950s.

New Threats to Shipping in South-East Asia

The Guangdong coast in the South China Sea had a centuries-old tradition of maritime violence that, from a Eurocentric perspective, can be described as piracy.⁶ Its suppression in the second half of the nineteenth century both facilitated European penetration of the region and prompted Qing cooperation with European navies to consolidate the coastal sovereignty of the Chinese Empire.⁷ By the turn of the twentieth century, ‘classic’ piracy—boarding ships at sea in order to rob them—had largely disappeared. This was due not only to violent repression but also to the spread of steamships, which local maritime actors could neither afford nor effectively attack with wooden vessels such as junks.

In today’s Daya Bay, then known as Bias Bay, criminal groups therefore developed a new modus operandi. Financed by criminal syndicates in Hong Kong and Macao, they travelled on specific steamships as passengers, scouting routes and layouts while secretly depositing weapons on board. After several such trips, they again boarded as passengers and seized control of the ship when it was near their home bay. They robbed passengers and cargo, forced the crew to steer toward Bias Bay, and escaped with loot and hostages in lifeboats up narrow creeks inaccessible to Western gunboats.

This new form of maritime violence raised fundamental questions about maritime security. How could ships be safeguarded? Who was responsible for protecting ships, and to what extent? How could this threat be permanently overcome? Above all, however, piracy around Hong Kong forced the British Empire to re-examine centuries-old legal principles that had previously been taken for granted, such as the definition of piracy and the scope and limits of imperial responsibility. This involved a series of key legal questions, one of which I would like to focus on in the remainder of this post: to what extent was the Crown responsible for protecting its subjects from this new kind of piracy?⁸ This question touched on a core element of the (unwritten) constitution of the British Empire: the relationship between sovereign and subject. It was raised by what, at first glance, seemed to be a rather niche lawsuit filed in 1931 by the China Navigation Company (CNC), a subsidiary of the British shipping company Butterfield and Swire.

The British Response

The Royal Navy’s traditional strategy of hunting known pirate ships proved ineffective against this new threat. Convoys were impractical given the density of shipping lanes, while amphibious operations in Bias Bay were only rarely feasible, as Great Britain and other empires feared the consequences of attacking Chinese territory. China remained sovereign, despite civil war, and was undergoing an intense phase of popular anti-Western sentiment. Local authorities in Hong Kong were therefore compelled to develop novel schemes of piracy prevention.⁹

In doing so, they shifted the primary responsibility to shipping companies. Steamships registered in Hong Kong were required to install iron grilles to block passenger access to the bridge and engine room and to equip ships with wireless telegraphy so that nearby naval patrols could be alerted during attacks. Companies were also obliged to hire former Indian soldiers as guards on board. It was the latter issue of guards in particular that escalated the conflict between the CNC and the British government.

An initial compulsory version of the scheme was introduced in 1914, but failed in 1927 due to (alleged) disciplinary problems among the guards and was replaced by a voluntary model. Because the wave of piracy did not subside, the British government decided in 1928 to offer to station Royal Marines on Hong Kong’s steamships, though only at the request of the shipping companies and in return for appropriate financial compensation. Lacking any meaningful alternatives and facing unchecked piracy, the principal shipping firms agreed under protest and paid up.¹⁰

The Royal Marines initially proved highly effective, but under conditions of ‘imperial overstretch’ after the First World War, their deployment was considered too labour-intensive for the Royal Navy to sustain.¹¹ In spring 1930, the British government (through the Hong Kong authorities) thus informed shipping companies that the existing arrangement would end and the Royal Marines would again be replaced by guards. Their deployment remained voluntary, but was now more strictly regulated by the Hong Kong police and continued to be financed by the companies.¹²

The Limits to the Protection of Crown Subjects

The withdrawal of the Marines proved to be the final straw for the CNC. One year later, it filed a lawsuit asking the High Court of Justice to declare it unconstitutional for the Crown to demand payment for the military protection of its subjects, as it had a duty to do so.¹³ At first glance, this late lawsuit over a long-expired guard scheme may seem strange. However, the CNC was pursuing ulterior motives with the proceedings. As early as 1930, the company’s legal representative, Leslie Scott, had pointed out that if the court ruled that protection in exchange for financial compensation was unconstitutional, Parliament would—given enough public attention—be forced to call for military action against the pirates of Bias Bay, which the government did not dare to undertake in view of current geopolitical conditions.¹⁴

High Court Judge Rowlatt dismissed the case, arguing that the CNC relied on an erroneous understanding of the term ‘duty’. While protecting nationals from piracy in foreign waters might under certain circumstances constitute a ‘political’ duty, he held that it was not a legally enforceable one.¹⁵ Despite this initial defeat, Scott and the CNC turned to the Court of Appeal, radicalizing their argument by invoking Magna Carta as a foundational text of the British constitution: ‘[A]s the subject oweth true and faithful ligeance and obedience, so the King is to govern and protect his subject.¹⁶

Once again, the CNC failed, and Judge Thomas Scrutton, notorious for his dismissive manner, could not resist a certain irony: ‘Henry II would, I think, have been surprised to hear that if his tenant went to China, the King was bound to follow and protect him.’¹⁷ What initially sounds like a witty retort was in fact the prelude to an argument that impressively demonstrates the ways in which European empires adapted their laws to the maritime transition period. The court acknowledged that subjects of the Crown were in principle entitled to its protection, but denied any general right to protection from abstract dangers far from home arising from one’s own business activities.

After centuries in which protecting subjects far from home had served as a source of legitimacy and a pretext for British imperial rule, the judge’s reasoning was striking, and reflects the impact of maritime modernity on conceptions of imperial statehood at sea. Whereas the protection of subjects and their interests had justified imperial violence since the early nineteenth century,¹⁸ new forms of maritime violence now compelled the Empire to reconceive its seafaring subjects as autonomous actors, albeit regulatable within certain limits. In Sutton’s words once more:

Britons fortunately are enterprising people accustomed to look after themselves; to suggest a duty on the British government to follow adventurous Britons all over the World into places where their personal wishes or adventures have taken them to protect them from the difficulties they have got themselves into, does not represent a legal duty of any kind.¹⁹

Feature image: Location of the Irene steamship incident, 1927. National Archives Administration, Taiwan, 0018/367.1/0007-1. Public domain.

1. Jürgen Osterhammel, Die Verwandlung der Welt: Eine Geschichte des 19. Jahrhunderts (Munich, 2020), 404–9. [↩]
2. Eric Tagliacozzo, ‘Hajj in the Time of Cholera: Pilgrim Ships and Contagion from Southeast Asia to the Red Sea’, in James L. Gelvin and Nile Green (eds.), Global Muslims in the Age of Steam and Print (Berkeley, 2013), 103–20; Felix Brahm, Merchandise of Power: Der Waffenhandel zwischen Europa und Ostafrika (1850–1919) (Frankfurt am Main, 2022). [↩]
3. Daniel Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (New York, 2009); Amedeo Policante, The Pirate Myth: Genealogies of an Imperial Concept (Abingdon, 2015); Sonja Schillings, Enemies of all Humankind: Fictions of Legitimate Violence (Hanover, NH, 2017). [↩]
4. Lauren Benton, ‘Toward a New Legal History of Piracy: Maritime Legalities and the Myth of Universal Jurisdiction’, International Journal of Maritime History, 23/1 (2011), 225–40, at 240; Stefan Eklöf Amirell, Pirates of Empire: Colonisation and Maritime Violence in Southeast Asia (Cambridge, 2019). [↩]
5. The research on this new wave of violence is limited: Martin Pubrick, ‘Pirates of the South China Sea’, Asian Affairs, 49/1 (2018), 11–26; Robert J. Antony, ‘Piracy on the South China Coast through Modern Times’, in Bruce Elleman et al. (eds.), Piracy and Maritime Crime: Historical and Modern Case Studies, (Washington DC, 2013), 35–50, esp. 45–7; Edward R. Lucas, ‘Fighting Pirates: Maritime Hegemons’ Interests in Combatting Piracy’ (unpublished PhD thesis, American University, 2016), 110–69. [↩]
6. Robert J. Antony, ‘Piracy on the South China Coast through Modern Times’, in Elleman et al. (eds.), Piracy and Maritime Crime, 35–50. [↩]
7. Nathan Kwan, ‘“Designs against a common foe”: The Anglo-Qing Suppression of Piracy in South China’ (unpublished PhD thesis, King’s College London, 2020). [↩]
8. On the imperial ‘regime of protection’, see Lauren Benton, They Called It Peace: Worlds of Imperial Violence (Princeton, 2024), 150–98, esp. 179–82. [↩]
9. Sheilah Hamilton, Watching over Hong Kong: Private Policing 1841–1941 (Hong Kong, 2008), 93–101. [↩]
10. High Court of Justice—King’s Bench Division, Judgment, 19 May 1931, in SOAS, JSS 3/8/9. [↩]
11. Daniel Owen Spence, Colonial Naval Culture and British Imperialism, 1922–67 (Manchester, 2015), 13–28. [↩]
12. Hamilton, Watching, 94–101; High Court of Justice—King’s Bench Division, Judgment, 19 May 1931, in SOAS, JSS 3/8/9. [↩]
13. See High Court of Justice—King’s Bench Division, Judgment, 19 May 1931. [↩]
14. Leslie Scott to The China Navigation Company Limited, 16 June 1930, in SOAS, JSS 3/8/9. [↩]
15. High Court of Justice—King’s Bench Division, Judgment, 19 May 1931. [↩]
16. Supreme Court of Judicature, Judgment, 11 Apr. 1932, in SOAS, JSS 3/8/9. [↩]
17. Ibid. [↩]
18. Benton, They Called It Peace. [↩]
19. Supreme Court of Judicature, Judgment, 11 Apr. 1932. [↩]

Kevin Lenk

The Pirate, the Sovereign, and the Subject: Old Enemies and New Problems in the Face of Maritime Modernity (1890–1939)

Kevin Lenk is a postdoctoral researcher working at the Chair of Contemporary History at Heidelberg University. He received a PhD… Read more

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