Max Kennerly @MaxKennerly Trial lawyer by day. Cookie monster by night. Jan. 11, 2020 3 min read

I am struggling to see how this answer passes the Caroline test, it's like he's trying to flunk it.

It's Saturday morning, so how about a meandering thread on international law? There will be boats, the "Law of Prize and Booty," and Baby Yoda's nurse. /1

These extremely-accurate drawings show the aforementioned SS Caroline. Amid the Upper Canada Rebellion, it was was stolen from Schlosser's Landing in New York, set ablaze, and shoved towards Niagara Falls in 1837 by the British Royal Navy and Canadian loyalist militias. /2

This was part of a series of U.S./Canadian cross-border attacks in 1837-38. Masked U.S. paramilitary members similarly burned the The Sir Robert Peel, a British passenger boat best known for stupid drag races against other passenger boats. It's still down there today. /3

It'd be just another skirmish, but Alexander McLeod (pic), a Canadian sheriff, later—and quite stupidly—boasted in New York "his sword had drank the blood of two men on board the Caroline." He was arrested for the murder of Amos Durfee, whose body washed up after the attack. /4

The U.S. had previously complained about the Caroline and been ignored, but arresting McLeod and putting him on trial got the attention of the British, and they were super mad about it. They made, well, pretty much the same argument Pompeo is making now. /5

US Secretary of State Daniel Webster responded, saying the UK must show "necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Lord Ashburton "perfectly agreed," then asked: "when begins your right to defend yourself?" /6

Britain said it would declare war if McLeod was found guilty. The US tried him anyway, the prosecution had trouble proving he was even there, and the jury deliberated for 28 minutes then acquitted him. Nonetheless, the letters stuck. I'll let @RadioFreeTom explain:
/7

Which raises the question: what *is* international law, anyway?

Let's first ask Hugo Grotius, although presently we pause to give a shoutout to Elselina van Houwening, his maid who smuggled him out of the Netherlands in this book chest after he was declared diabolical. /8

In 1603, three Dutch ships anchored near Singapore encountered the massive Portuguese carrack Santa Catarina so they, of course, seized it and its cargo and took it back to the Netherlands. They wanted to make it all legal and stuff, so they called Grotius to write a brief. /9

Grotius wrote an epic 500-page treatise in response, giving it the equally epic name, De Jure Praedae Commentarius, or "Commentary on the Law of Prize and Booty," which, relying on "natural law," laid a foundation for international law. Later, "positive law" would take over. /10

International law owes much to ancient nautical practices. It begins with a single crime recognized as punishable by all, over which all nations had jurisdiction: piracy. And frankly we're still quibbling over what that means, too. /11  https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1029&context=jil 

If you watch sci-fi or fantasy, you likely encounter these principles of ancient maritime law fairly often. Just this year, in The Mandalorian Baby Yoda's nurse robot was recovered "flotsam," and in The Expanse the Rocinante was granted status as a "legitimate salvage." /12

This stuff was all so second-nature to the Founders that they specifically spelled out that Congress could had the power to authorize privateers ("letters of marque and reprisal") and "to define and punish piracies" as well as "offences against the law of nations." /13

Were slave traders pirates? This was a big issue in the 1820s. (See:  https://harvardlawreview.org/2015/02/international-norms-and-politics-in-the-marshall-courts-slave-trade-cases/  ) And who are today's pirates? That issue was raised in a 2018 Supreme Court case. The excerpt is from Justice Sotomayor's dissent. /14

So there's some boats and pirates and space robots and international law to go with your coffee. /end


You can follow @MaxKennerly.



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