The Law of the Day

• Author: Craig Forcese
• Pages: 125-127

125

Chapter 15

The Law of the Day

The law of nations is made up of natural law, of common law, and treaties.

— willis hall, attorney General of new york in the MCleod Case1

L   across the gulf of 175 years, the merits of

the contending US and British diplomatic positions in the

Caroline dispute seem to be an academic matter — and they

would be, but for the later resonance of the position adopted by the

two powers. So, who was right in the Caroline af‌fair?

Measured against the current standards in international law,

there is much to recommend the British stand. But to assess the

Caroline against modern criteria would be an example of “intertem-

poral law” — a practice of evaluating the conduct of the past against

the standards of the present, a methodology described and rejected

by international lawyers of the twentieth century.2 Even Webster’s

own April 1841 formulation was an act of synthesis, albeit one that

drew on well-established antecedents. Webster’s test required neces-

sity (“necessity,” “overwhelming, leaving no choice of means”), pro-

portionality (“nothing unreasonable or excessive”), and imminence

(“no moment for deliberation”). But the standards for defensive war

that had been articulated in the past were often “far larger and much

murkier” than those advanced by Daniel Webster in this famous April

1841 recipe.3 Not least, Webster’s doctrine was narrower than the