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The Caroline and McLeod Cases

Published online by Cambridge University Press:  12 April 2017

R. Y. Jennings
R. Y. Jennings*
Affiliation:
University of Cambridge
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Extract

There is probably no branch of international law which is so calculated to encourage the skeptic as that mass of contradictory precedents, dogmatic assertions, and vague principles which are collected under the common head of "intervention," and perhaps there is no more potentially dangerous ground of intervention than that which is variously described as "self-preservation" and "self-defence." It was in the Caroline case that self-defence was changed from a political excuse to a legal doctrine. At a time when the law has become once more fluid and is undergoing rapid change, a reconsideration of the Caroline controversy, and of McLeod's case to which it is so closely allied, may serve a useful end.

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 1 , January 1938 , pp. 82 - 99
Copyright
Copyright © American Society of International Law 1938

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References

1 The authority for the facts set forth in this résumé is the correspondence to be found in H. Ex. Doc. No. 74, 25th Cong., 2d Sess.

2 Mr. Trowbridge to the President, Dec. 14, 1837, H. Ex. Doc. No. 74, 25th Cong., 2d Sess.

3 H. Ex. Doc. No. 64, 25th Cong., 2d Sess.

4 Dated Feb. 21,1838; see also note 15 below. All the Law Officers' Reports referred to in this article will be found in the Public Record Office in London, Vols. F. O. 83., 2207–2209.

For the benefit of readers unacquainted with the work of the Law Officers of the Crown in England, it may be explained that their functions include that of acting as legal advisors to the Government Departments. Requests for such advice are made in the form of “drafts” prepared by the secretary of the Minister at the head of the department concerned. The replies of the Law Officers are called “reports”; they usually repeat the substance of the draft, after which follows the opinion on the point in. question.

5 Lieutenant Governor Head to Governor Marcy, Dec. 13, 1837, H. Ex. Doc. No. 302, 25th Cong., 2d Sess.

6 H. Ex. Doc. No. 73, 25th Cong., 2d Sess.

7 Benton N. S. to Hon. John, Forsyth Google Scholar, Buffalo, , Feb. 6, 1838, H. Ex. Doc. No. 302, 25th Cong., 2d Sess Google Scholar. Also dispatch from Governor Head to Henry S. Fox, ibid.

8 Dated Jan. 5, 1838, H. Ex. Docs. 302 and 73, 25th Cong., 2d Sess.

9 H. Ex. Doc. 302, 25th Cong., 2d Sess.; Public Record Office, F. O. 5. 322.

10 See below at p. 93.

11 British Parliamentary Papers, Vol. LXI, (1843); British & Foreign State Papers, Vol. 29, p. 1129.

12 The actual fact alleged would certainly seem to have been established. Cf. a letter from a Mr. Lyman to Governor Marcy, in which, having examined the situation himself, he reports that “the laws of the United States … have been, and are, openly violated.” Cf. also a letter from the Mayor of Buffalo to the President, saying that “The civil authorities have no adequate force to control these men, and unless the General Government should interfere, there is no way to prevent serious disturbances.” H. Ex. Doc. No. 74,25th Cong., 2d Sess.

13 Cf. the letter from Fox to Palmerston, Jan. 13, 1838, containing the first mention of self–defence: “But I am persuaded that when the whole case is examined, it will receive a full justification; if not according to strict law as applicable to ordinary cases, at least upon the principle of self–defence and self–preservation.” (Record Office, F. O. 5. 322.)

Cf. also a remarkable dispatch which Palmerston addressed to Fox, Dec. 15,1838, where, discussing a hypothetical case of a rebel descent from United States territory into Canada, he says: “It is possible H. M.'s forces, after having defeated and dispersed those Bands, as they would certainly do, might be obliged, with a view to their more complete destruction, to pursue them for a short way across the Frontier.” This proposed invasion Palmerston euphemistically described as “some little overstepping of the boundary of the Union for the purpose of more effectually abating a danger which the authorities of the United States would in such a supposition have been unable to control.” (Record Office, F. O. 5. 321.)

Webster, in his letter to Lord Ashburton, July 27, 1842, found occasion to complain of this same attitude: “The act of which the Government of The United States complains is not to be considered as justifiable or unjustifiable, as the question of the lawfulness or unlawfulness of the employment in which the Caroline was engaged, may be decided the one way or the other. That act is of itself a wrong, …” (British & Foreign State Papers, Vol. 30, at p. 193.)

14 Signed by Dodson, J., Campbell, I. , Rolfe, R. M.. F. O. 83. 2207.Google Scholar

15 Idem.

16 Quoted above at p. 83.

17 The use of the term “neutral” in connection with a civil war is somewhat irregular, for it properly applies only to a war between states. Nevertheless, it is employed extensively in the correspondence relating to the Canadian Rebellion. Cf. a letter from Mr. Scoville to Mr. Benton, H. Ex. Doc. No. 74, 25th Cong., 2d Sess., where he says: “There is a general feeling here in favor of the radical cause, and it may become difficult to prevent violations of the laws of neutrality.” Cf. also, the letter from N. Garrow to the President, H. Ex. Doc. No. 64, 25th Cong., 2d Sess.; also, Webster's letter to Fox, April 24,1841, British & Foreign State Papers, Vol. 29, at p. il36.

18 See note 14.

19 It seems that some members of Congress believed that the Canadian trouble might be exploited with profit in connection with the boundary dispute. Thus, in a letter to the Foreign Office, Feb. 1, 1838,. Fox reports:

“I further inclose the printed copy of a speech, upon the above subjects, reported as having been delivered in the Senate of the United States, by Mr. Smith, Senator from Maine, upon the discussion of the President's message to Congress of the 5th of January, respecting the preservation of neutrality on the frontier. The object of this speech is to recommend that the state of affairs in Canada should be taken advantage of by the United States, as a favourable occasion for forcing upon Great Britain a settlement of the Boundary Question. I am informed that Mr. Smith did not deliver his speech in the Senate, but only uttered a few remarks which were indistinctly heard. He has since published in the Washington ’Globe’, the administration newspaper, for the benefit of his constituents, the speech which I have now the honour to enclose.” (Record Office, F. O. 5. 322.)

20 For a history of the Webster–Ashburton negotiations see Callahan, American Foreign Policy in Canadian Relations, pp. 185–214; Adams, E. D., “Lord Ashburton and the Treaty of Washington,” in American Historical Review (July, 1912), Vol. XVII, p. 764.Google Scholar

21 Parliamentary Papers (1843), Vol. LXI; British & Foreign State Papers, Vol. 30, p. 193.

22 Lord Ashburton to Mr. Webster, , July 28, 1842. Parliamentary Papers (1843), Vol. LXI; British & Foreign State Papers, Vol. 30, p. 195.Google Scholar

23 Webster's authority for this proposition is presumably the letter from Captain Drew to Hon. A. N. McNab, Dec. 30, 1837, where Drew reports: “about eleven o’clock P.M., we pushed off from the shore for Navy Island, when, not finding her there, as expected, we went in search, and found her moored between an island and the main shore.” The position of the phrase “as expected” renders this passage somewhat ambiguous. But in the immediately preceding sentence Drew says: “I ordered a lookout to be kept upon her [the Caroline], and, at about 5 P.M. of yesterday, when the day closed in, Mr. Harris, of the royal navy, reported the vessel to me as having moved off Navy Island.” Thus, it appears doubtful whether the whole passage was really intended to convey the meaning which Lord Ashburton found it convenient to attribute to it. Drew's letter will be found in H. Ex. Doc. No. 302, 25th Cong., 2d Sess.

24 See note 23.

25 Parliamentary Papers (1843), Vol. LXI; British & Foreign State Papers, Vol. 30, p. 201.

26 Droit des Gens, Liv. II, Chap. IV (Washington, Carnegie Institution, 1916).

27 E.g., in dispatch to Palmerston, Jan. 13, 1838; note to Forsyth, Feb. 6, 1838.

28 Elements of International Law (1836), p. 81.

29 Commentaries upon International Law (1854), Vol. I, Chap. X.

30 International Law (1861), p. 91.

31 The Law of Nations (1861), pp. 12–13.

32 International Law (1880), pp. 226–239.

33 International Law (1905), pp. 177–181.

34 The Law of Nations (2nd ed., 1936), at p. 256.

35 Cf. Rodick, , The Doctrine of Necessity in International Law.Google Scholar

36 Cf. Lord Ashburton’s letter, July 28, 1842: “Agreeing, therefore, on the general principle and on the possible exception to which it is liable, the only question between us is, whether this occurrence came within the limits fairly to be assigned to such exceptions…”

37 Cf. letter from the District Attorney for Erie County to the President, H. Ex. Doc. No. 73,25th Cong., 2d Sess. A Collector at Buffalo wrote, “The whole frontier is in motion, and God knows where it will end.” (tie!)

38 Public Record Office, F. O. 5. 321.

39 Report on the Commission of Claims, under the Convention of 1863, compiled by Edmund, Hornby, the British Commissioner (London, 1856), at p. 430.Google Scholar

40 British & Foreign State Papers, Vol. 29, p. 1126.

41 Webster had a very low opinion of the attitude which had been assumed by the Van Buren Administration. Cf. his speech before the Senate in defence of the Treaty of Washington, Webster’s Works, Vol. V, p. 121 et seq.

42 Mr. Webster to Mr. Crittenden, Washington, March 15, 1841, British & Foreign State Papers, Vol. 29, p. 1139.

43 Mr. Webster to Mr. Fox, April 24, 1841, loc. cit.

44 1 Hill (N. Y.), p. 375.

45 2 R. S. 609, par. 54 (2d ed.).

46 Allen, Regina v. (1862), 1 B. & S., p. 850:Google Scholar

“I do not express an opinion whether, after a nolle prosequi has been entered, the prosecutor can proceed with a fresh indictment. But the power of determining whether the prosecution of an indictment shall go on or not, is entrusted to the Attorney General, who is the great law officer of the Crown; and whether he is right or wrong this Court cannot interfere.” Per Blackburn, J., at p. 856.

47 British Commissioner’s Report, p. 435.

48 See note 21.

49 See note 22.

50 See note 25.

51 The full text of the act is reproduced in British & Foreign State Papers, Vol. 30, pp. 202–203.

52 Moore’s Arbitrations, Vol. III, pp. 2419–2428; Report on the Commission of 1853, compiled by Edmund, Hornby, British Commissioner (London, 1856), pp. 428–455; Report on the Commission of Claims of 1853, transmitted to the Senate by the President (Washington, 1856), pp. 314–327.Google Scholar

53 Moore’s Arbitrations, Vol. V, pp. 4743–4746.

54 F. O. 83. 2208.

55 Earl of Aberdeen to Mr. Fox, British Commissioner’s Report, p. 437.

56 Signed by Harding, J. D , Cockburn, A. E., Richard, Bethel. F. O. 83. 2209.Google Scholar

57 See note 42.

58 The whole of the argument of the American Commissioner is reproduced in Moore’ s Arbitrations, Vol. III, pp. 2419–2424.

59 See note 22.

60 British Commissioner’s Report, p. 442.

61 Moore’s Arbitrations, Vol. III , pp. 2424–2425.