Pirates

Via Instapundit, an interesting article on pirates, from Humanities, the magazine of the National Endowment for the Humanities (so you should probably visit the site while you still can):

A Lot of What Is Known about Pirates Is Not True, and a Lot of What Is True Is Not Known

By Mark G. Hanna

In 1701, in Middletown, New Jersey, Moses Butterworth languished in a jail, accused of piracy. Like many young men based in England or her colonies, he had joined a crew that sailed the Indian Ocean intent on plundering ships of the Muslim Mughal Empire. Throughout the 1690s, these pirates marauded vessels laden with gold, jewels, silk, and calico on pilgrimage toward Mecca. After achieving great success, many of these men sailed back into the Atlantic via Madagascar to the North American seaboard, where they quietly disembarked in Charleston, Philadelphia, New Jersey, New York City, Newport, and Boston, and made themselves at home.

When Butterworth was captured, he admitted to authorities that he had served under the notorious Captain William Kidd, arriving with him in Boston before making his way to New Jersey. This would seem quite damning. Governor Andrew Hamilton and his entourage rushed to Monmouth County Court to quickly try Butterworth for his crimes. But the swashbuckling Butterworth was not without supporters.

In a surprising turn of events, Samuel Willet, a local leader, sent a drummer, Thomas Johnson, to sound the alarm and gather a company of men armed with guns and clubs to attack the courthouse. One report estimated the crowd at over a hundred furious East Jersey residents. The shouts of the men, along with the “Drum beating,” made it impossible to examine Butterworth and ask him about his financial and social relationships with the local Monmouth gentry.

Armed with clubs, locals Benjamin and Richard Borden freed Butterworth from the colonial authorities. “Commanding ye Kings peace to be keept,” the judge and sheriff drew their swords and injured both Bordens in the scuffle. Soon, however, the judge and sheriff were beaten back by the crowd, which succeeded in taking Butterworth away. The mob then seized Hamilton, his followers, and the sheriff, taking them prisoner in Butterworth’s place.

A witness claimed this was not a spontaneous uprising but “a Design for some Considerable time past,” as the ringleaders had kept “a pyratt in their houses and threatened any that will offer to seize him.”

Governor Hamilton had felt that his life was in danger. Had the Bordens been killed in the melee, he said, the mob would have murdered him. As it was, he was confined for four days until Butterworth was free and clear.

Jailbreaks and riots in support of alleged pirates were common throughout the British Empire during the late seventeenth century. Local political leaders openly protected men who committed acts of piracy against powers that were nominally allied or at peace with England. In large part, these leaders were protecting their own hides: Colonists wanted to prevent depositions proving that they had harbored pirates or purchased their goods. Some of the instigators were fathers-in-law of pirates.

There were less materialist reasons, too, why otherwise upstanding members of the community rebelled in support of sea marauders. Many colonists feared that crack-downs on piracy masked darker intentions to impose royal authority, set up admiralty courts without juries of one’s peers, or even force the establishment of the Anglican Church. Openly helping a pirate escape jail was also a way of protesting policies that interfered with the trade in bullion, slaves, and luxury items such as silk and calico from the Indian Ocean.

Much more at the link. It’s interesting how such popular violence was a part of life in early America.

Code of Hammurabi

It should really be the Code of Marduk, of course. Just look at the bas-relief sculpture at the top of the stele:

Hammura1

American Historical Association.

According to people more informed than I am, King Hammurabi (ruled in Babylon, in Mesopotamia, in the early 18th century BC) is the one standing in the posture of respect to the god, who is sitting, holding a symbol of authority, and telling the king which the laws he wants instituted. The classic comparison here is Moses atop Mount Sinai getting instruction from Yahweh; in both cases we see how religion helps to justify the system. These laws aren’t arbitrary! Some human, as important as he was, didn’t just make them up on the toilet one morning. They come from a god, so you’d better obey them.

The two notable features of the Code of Hammurabi are retributive justice (“an eye for an eye”), and differentiated punishment, based on one’s social status. Generally, if you harm a social equal, you suffer the same harm back, but if you harm someone beneath you in the social hierarchy (that is, if you’re an aristocrat and you hurt a commoner, or if you’re a commoner and you hurt a slave), you can always pay a fine and get out of being hurt yourself.* Nowadays we’re appalled by this, of course: as the bumper sticker says, “an eye for an eye leaves everyone blind!” And really, if someone harmed me, I wouldn’t be satisfied by getting to inflict the same harm on him – I’d much rather have some cold hard cash for compensation instead. But I have a theory about the lex talionis. That is, nowadays murder, assault, battery, grievous bodily harm, etc. are all crimes – crimes against the state, whose subjects have been harmed and whose peace has been disturbed. Thus does the state reserve for itself the right to punish such actions. This wasn’t always the case – in many other times and places hurting someone was something between you and him – or more accurately, between your people and his people. The state was much more self-interested and self-preservative. Harming someone else was like putting up a fence three feet beyond your actual property line and trying to claim a bit of your neighbor’s yard. This is not something he can call the police about, and it’s not something that anyone will even enforce save for him complaining about it. Violent revenge, in other times and places, was legitimate in a way that it is not in the present-day United States. What retributive justice did, therefore, is to impose a ceiling on the amount of revenge you could take. It’s an eye for an eye – not two eyes, seven teeth, and an ear. It is natural to escalate, to inflict far more suffering than you have suffered, but even ancient states had an interest in stopping such cycles of violence. Thus the proportional (and limited) violence allowed.

* As far as the formal laws were concerned, of course. We have no idea whether these laws were actually enforced, or merely rhetorical. (Nevertheless, laws remain a good historical source for a given society, because no one passes a law against something that isn’t happening.)

Some of my favorite laws from the Code of Hammurabi:

2. If any one bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.

This is a wonderful description of trial by ordeal. The river knows! But don’t make your accusation lightly (the stakes are a little higher here than losing a civil suit and having to pay your opponent’s court costs, as is the case in Canada.)

I hope that enterprising Babylonians taught themselves how to swim.

53. If any one be too lazy to keep his dam in proper condition, and does not so keep it; if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money shall replace the corn which he has caused to be ruined.

Agriculture was dependent on irrigation – but everyone had to pull together to make sure that it worked.

57. If a shepherd, without the permission of the owner of the field, and without the knowledge of the owner of the sheep, lets the sheep into a field to graze, then the owner of the field shall harvest his crop, and the shepherd, who had pastured his flock there without permission of the owner of the field, shall pay to the owner twenty gur of corn for every ten gan.

Oh, the farmer and the shepherd should be friends! It’s interesting how you either raised crops or you raised animals – rarely did people do both. It’s also interesting how raising crops seems to be the more important activity here – in contrast to ancient Hebrew society, which seemed to favor pastoralism (viz. the gifts of Cain and Abel in Genesis).

104. If a merchant give an agent corn, wool, oil, or any other goods to transport, the agent shall give a receipt for the amount, and compensate the merchant therefor. Then he shall obtain a receipt from the merchant for the money that he gives the merchant.

Here we see evidence of long-distance trade carried out by merchants and their employees – and the perennial temptation to cheat.

108. If a tavern-keeper (feminine) does not accept corn according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the corn, she shall be convicted and thrown into the water.

110. If a “sister of a god” open a tavern, or enter a tavern to drink, then shall this woman be burned to death.

Then as now bars were disreputable places. They watered down the liquor! They were so bad otherwise that the Babylonian equivalent of nuns were forbidden to enter them. I wonder if they weren’t associated with prostitution, with the feminine tavern-keeper playing the role of the madam.

142. If a woman quarrel with her husband, and say: “You are not congenial to me,” the reasons for her prejudice must be presented. If she is guiltless, and there is no fault on her part, but he leaves and neglects her, then no guilt attaches to this woman, she shall take her dowry and go back to her father’s house.

It’s definitely a man’s world in ancient Babylon, but I like how women have some rights. Here, she can actually initiate divorce, and as long as she is “guiltless,” she can leave.

215. If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money.

218. If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.

So Babylon had professional physicians. I wonder if the ten shekels was a floor or a ceiling – that is, was it an especially generous reward for competence, or was it a maximum, to prevent the greedy physician from charging even more? Note that you were punished exceedingly if you failed. That’s just the way it is in the Code of Hammurabi!

The Constitution

From Reinhardt’s Events Page:

Supreme Court Justice Keith Blackwell to Speak

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Those words are familiar to most Americans as the Preamble to our Constitution, and community members are invited to hear Justice Keith R. Blackwell of the Supreme Court of Georgia speak on the nature of this important document during Reinhardt’s Constitution Day on Thursday, Sept. 17, 2015, at 2 p.m. in the Bannister Glasshouse, Hasty Student Life Center on the University’s main campus in Waleska, Ga.

Blackwell, a native of Ball Ground, Ga., will be introduced by another long-time Cherokee County resident, S. Jeffrey Rusbridge, a principal with the law firm of Dyer & Rusbridge, P.C. of Canton, Ga. Rusbridge and Blackwell, who were college roommates and law school classmates, have been friends for many years.

Dr. Karen P. Owen, program director for the University’s Master of Public Administration program, has helped plan this event and hopes community members will take this opportunity to help celebrate the signing of the U.S. Constitution.

September 17 is the day when the original Constitution was signed in Philadelphia, and has been designated Constitution Day since 2004. All universities that receive federal funds (i.e., all of them) must by law provide Constitution-themed educational programming on that day. I’m pleased that Reinhardt is doing something this notable.

I have always been impressed by the place of the Constitution in this country. The US is one of the oldest constitutional democracies on earth; as Mark Steyn once put it:

We know Eastern Europe was a totalitarian prison until the Nineties, but we forget that Mediterranean Europe (Greece, Spain, Portugal) has democratic roots going all the way back until, oh, the mid-Seventies; France and Germany’s constitutions date back barely half a century, Italy’s only to the 1940s, and Belgium’s goes back about 20 minutes, and currently it’s not clear whether even that latest rewrite remains operative. The U.S. Constitution is not only older than France’s, Germany’s, Italy’s or Spain’s constitution, it’s older than all of them put together.

But how could it be otherwise? When you’ve got a “proposition nation” like the U.S. is, the Constitution takes on an outsized importance – it quite literally constitutes the country. (France might change constitutions, but no one doubts that France, with its historic language, cuisine, and culture, will still be there.)

Alas, the Constitution is deliberately difficult to change. In some ways this is a good thing, in accord with how seriously we take it. In some ways it is a bad thing, because some changes should not require constitutional amendments. This has led to the whole tradition of the Living Constitution, which to my mind is a worse situation. As Jonah Goldberg once put it:

The idea is simple. Al Gore summed it up pretty well when he was asked during the 2000 campaign what kind of judges he’d appoint. “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”

The most popular argument against a “living Constitution” is also pretty simple. Once you accept the proposition that the words on the page can mean what you want them to mean, well, then the words on the page matter less than the views of those we select to interpret them. Once this happens, the Court in effect becomes an unelected and unaccountable legislature.

Furthermore:

The only good constitution is a dead constitution… The rules of the dead keep us free. Imagine you’re playing baseball and all the rules can be changed mid-game.

Technically you’d be more “free.” After all, you could vote to eliminate strikes and balls. You could choose to run to third base first or extend the innings indefinitely until you win. But then again, so could everyone else. In other words, if you don’t set the rules in advance you don’t get freedom, you get anarchy. You don’t get a baseball game, you get a bunch of guys running around in funny clothes with clubs.

I do not think, though, that Jesus bestowed the Constitution on us.

Cromwell

Interesting article about an article. I’m glad to read this; I’ve always felt that Cromwell’s crimes in Ireland were somewhat exaggerated:

Between 1652 and 1654, the high court of justice in Ireland presided over nearly 129 recorded trials. Interestingly, 41 per cent of individuals tried were pardoned.

It seems that the court was not a retributive measure, but instead proved essential to ensuring the success of Cromwell’s regime in Ireland. Cromwell seems to have embraced both long-standing domestic traditions and emerging international legal principles to create a judicial system which was not dissimilar to modern criminal tribunals, Wells notes.

Moving away from a black-or-white portrayal of Cromwell as saviour or slaughterer, Wells’ argument is cleverly nuanced. She suggests that the distinctive circumstances in Ireland in the 1650s meant that English parliamentarians used law as a means to move away from violence. In doing so, the new regime became legitimised, enhancing English power in Ireland.

It is this clever combination of at once being rooted in the English past and being flexible enough to use multiple legal traditions which was exported throughout the later British Empire. Wells has clearly shown that Ireland served as the testing grounds for a style of governance which would be imposed around the world.

Magna Carta

Turns out Magna Carta is not as significant as everyone thinks!

“Did Magna Carta make a difference?” [historian David] Carpenter asks. Most people, apparently, knew about it. In 1300, even peasants complaining against the lord’s bailiff in Essex cited it. But did it work? There’s debate on this point, but Carpenter comes down mostly on the side of the charter’s inadequacy, unenforceability, and irrelevance. It was confirmed nearly fifty times, but only because it was hardly ever honored. An English translation, a rather bad one, was printed for the first time in 1534, by which time Magna Carta was little more than a curiosity.

Then, strangely, in the seventeenth century Magna Carta became a rallying cry during a parliamentary struggle against arbitrary power, even though by then the various versions of the charter had become hopelessly muddled and its history obscured. Many colonial American charters were influenced by Magna Carta, partly because citing it was a way to drum up settlers. Edward Coke, the person most responsible for reviving interest in Magna Carta in England, described it as his country’s “ancient constitution.” He was rumored to be writing a book about Magna Carta; Charles I forbade its publication. Eventually, the House of Commons ordered the publication of Coke’s work. (That Oliver Cromwell supposedly called it “Magna Farta” might well be, understandably, the single thing about Magna Carta that most Americans remember from their high-school history class. While we’re at it, he also called the Petition of Right the “Petition of Shite.”) American lawyers see Magna Carta through Coke’s spectacles, as the legal scholar Roscoe Pound once pointed out. Nevertheless, Magna Carta’s significance during the founding of the American colonies is almost always wildly overstated. As cherished and important as Magna Carta became, it didn’t cross the Atlantic in “the hip pocket of Captain John Smith,” as the legal historian A. E. Dick Howard once put it. Claiming a French-speaking king’s short-lived promise to his noblemen as the foundation of English liberty and, later, of American democracy, took a lot of work.

Read the whole thing.