Legal Pirates, Treasure, and Murder: A Tale from the South Seas

Last week, as I scanned news items from across the Pacific, a particular story caught my eye.  A sunken pirate ship laden with treasure.  Massacre of the crew by island warriors.  A British boy that lived to tell the tale of his adventures in the islands.  It sounded like something Robert Louis Stevenson or Daniel Defoe might have written about!

The long and the short of it…

The plot, in summary, involves a British privateering vessel called the Port-au-Prince which lost its way in 1806 and laid anchor off the islands of Tonga.  (Interestingly enough, given what happened next, Tonga was once known as “The Friendly Islands.”)  The native inhabitants that visited the ship were friendly at first, but their true intentions became clear when they brutally killed most of the ship’s crew, stripped the ship of iron, and then sent it to its grave at the bottom of the Pacific Ocean, along with its cargo of plundered treasures.  A teenage boy on the ship was spared and lived on the islands for four years before returning to England where his accounts of Tongan life were published in a book.  The ship was never seen again – until this month, more than 200 years later, when divers discovered a wreck off the Tongan coast that is thought to be the Port-au-Prince, possibly with its treasure still intact inside.

As with so many interesting stories and historical events, there are legal angles to be found in this tale from the South Seas.  My first thought was: Awesome story – I bet we have cool stuff in the Library of Congress that relates to this!  My second thought was: Who owns the treasure?  The path on which this question led me was interesting in itself.

What is a “privateer”?

The Port-au-Prince sailed under the British flag but was actually built in France.  The British captured the ship in 1805 (the British and French weren’t getting along very well at the time) and it became a “privateer.”  Not being particularly knowledgeable on the details of maritime history and terminology, I had to look that up.  Basically, between the 16th and 19th centuries, some private ships were given official authorization by a government (a “Letter of Marque and Reprisal“) to attack foreign ships during wartime.  Any spoils that were obtained from such activities were shared amongst the officers and crew and any private investors in the endeavor.  So, it seemed to me, we were talking about legal pirates; pirates with a license; swashbuckling buccaneers with an air of legitimacy.  These were the guys that could say to the ladies “I’m not a pirate, darling, I’m a legitimate businessman.”

What happened to the Port-au-Prince?

The Port-au-Prince was given the primary task of attacking Spanish ships in the New World.  After a couple of years of plundering and looting, the ship then embarked on its secondary mission of hunting whales in the Pacific.  The intention was to make port in Tahiti, but it overshot its mark and ended up further west in the Ha’apai Islands of Tonga.

The events that ensued the day after its arrival were swift and gruesome.  At the end of the attack, which had been ordered by Chief Finau ‘Ulukalala II, only four crew members remained alive.  The story goes that the Tongans were not interested in the treasure on board, but did remove all the iron and canons from the ship before setting it alight and leaving it to sink.

One of the survivors was young William Mariner, a teenage ship’s clerk.  Apparently the chief had ordered that he be spared and took him into his protection following the attack on the ship.  William was renamed Toki ‘Ukamea (Iron Axe) and remained in the islands for four years until he was permitted to return to England on the brig Favourite when it landed in Tonga in November 1810.  His detailed account of life in the islands was subsequently transcribed and the resulting book was first published in 1817.

Who owns the treasure?

So, back to my question about the treasure.  Here are our facts: private individuals, acting on behalf of the British government, and on a ship stolen from the French, stole valuable items from Spanish ships (that were sailing in waters off South America and may have obtained treasures by less than honest means themselves), which were then sunk, along with the ship, in Tongan waters following a massacre.

I’ve seen various reports of disputes over treasure ownership and treasure-hunting ethics, including a recent U.S. Supreme Court decision to decline to hear an appeal from deep sea explorers who had been ordered to return $500 million worth of coins, found in a wreck of a Spanish warship which sank in 1804 in international waters, to Spain.  However, there has been no indication of any disputes relating to the Port-au-Prince treasure.  First of all, it hasn’t yet been salvaged (or even determined if it’s intact in the wreckage rather than being dispersed across the ocean).  Secondly, the location of the wreck is likely to be key if any treasure hunters decide to try to grab the treasure.  As stated in one article that referred to the Spanish coin case:

Whether the find lies within a country’s territorial waters is a vital consideration in any treasure-hunting case.

The concept of territorial waters is set out in the United Nations Convention on the Law of the Sea. Most countries have a limit of 12 nautical miles (approximately 22 kilometres) from their coastlines, and if Odyssey’s treasure ships ventured inside that limit, the company could forfeit its claim to the booty.

Moreira [former president of the Canadian Maritime Law Association] says that’s a standard rule.

“Usually, for this kind of case, there’s a law saying that [the find] is owned by the government, so if it’s in territorial waters, the law of the sea convention comes in and … the state would decide who owns and what compensation [the finder] is entitled to.

Given this statement, and the facts set out above, do you think anyone apart from the Tongan government might have a good claim to the the treasure?

Further resources

There is much, much more that could be written about this tale and the various characters involved.  Instead, I’ll leave you with a sample of some of the materials from the Library of Congress that relate to pirating and privateering, shipwrecks and sunken treasure, and adventures in the South Seas.

• The Library of Congress holds a copy of the 1817 book of William Mariner’s account of his life in Tonga that was compiled by John Martin: An Account of the Natives of the Tonga Islands in the South Pacific Ocean: with an Original Grammar and Vocabulary of their Language (London, 1817).  The Library also holds copies of the 1820, 1827, 1979, and 1981 editions of the book.  Various editions have also been digitized by the Hathi Trust.
• The Library also holds a book of Mariner’s account compiled by Vice-Admiral Boyle Townshend Somerville and published in 1936, as well as a version by Paul W. Dale in 1996.
• Mariner’s story also forms part of a 1925 book about maritime adventures: The Sea, the Ship and the Sailor; Tales of Adventure from Log Books and Original Narratives (Salem, Mass., Marine Research Society, 1925).
• A 1996 novel that was based on the the life of William Mariner and Finau Ulukalala is also in the Library’s collection: Louise Lose Finau, Toki: A Tongan Trilogy (a historical novel based on the Polynesian life of Will Mariner and Finau Ulukalala of Tonga) (1996).
• The Law Library of Congress has digitized a collection of pre-1923 piracy trials.  You can read about some of the responses to the collection in a previous In Custodia Legis post.
• Searching for “privateer” in the Library’s online catalog returns numerous results, including many books published in the 19th century.  Of course, searching for “pirates” leads to many more results, including The Mammoth Book of Pirates (Jon E. Lewis ed., 2006) [“In which is related many true and eyewitness accounts of the most notorious plunderers to rove the seas.”]  Try these two searches in our website search function and you’ll be able to narrow the results to web pages, photographs, music, and even legislative items as well!
• The Library of Congress exhibition “Exploring the Early Americas” has a section on “Pirates and Privateers” that includes maps depicting treasure fleets and items from a Spanish treasure ship.
• The Library also holds the Jay I. Kislak Collection, which includes a 1678 volume titled “The Buccaneers of America”.  This book  “gives an eyewitness account of the daring deeds of French, Dutch and English pirates raiding Spanish ships and colonies in the Caribbean,” and is available for viewing on our website.  (I told you we have cool stuff!)
• Searching the Library of Congress website and catalog for “shipwrecks” also leads to many results, including links to pages in THOMAS that relate to the Abandoned Shipwreck Act of 1987.
• There are, of course, books about treasure and treasure hunting, including the legal aspects of these.  For example, in the Law Library’s collection there are items such as: A. Henry Rhind, The Law of Treasure-Trove, How Can it be Best Adapted to Accomplish Useful Results? (Edinburgh, 1858); Sir George Hill, Treasure Trove in Law and Practice from the Earliest Time to the Present Day (Oxford, 1936); Treasure Laws of the United States: Artifact Hunters, Coin Hunters, Prospectors, Treasure Hunters, Relic Hunters, Rock Hounds, Know Your Rights (compiled by R.W. “Doc” Grim, 1993); Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (Sarah Dromgoole ed., 1999); and Eke Boesten, Archaeological and/or Historic Valuable Shipwrecks in International Waters: Public International Law and What it Offers (2002).