Destroying the Caroline: The Frontier Raid That Reshaped the Right to War 1552214788, 9781552214787

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Destroying the Caroline The Frontier Raid That Reshaped the Right to War

Craig Forcese

Advance Praise

This book is, today, the most comprehensive and accurate analysis of the often-misrepresented Caroline incident. It is a scrupulously researched recounting of the incident using a multi-disciplinary approach of history, international law, political science, and international relations. The attack upon the Caroline became the big bang moment in international law that created, as insightfully described by Forcese, the meme for how states use military force in anticipatory self-defence. He advances several important observations, including that the Caroline could be viewed as the archetypal example of a state using military force against non-state actors on the territory of another state that is unwilling or unable to stop unlawful activities of the non-state actors. This example persists today and directly informs the passionate debates about the use of military force against non-state actors, such as the Islamic State in Iraq and Syria (ISIS) and Al-Qaeda. The book will quickly become a leading text on the topic. It will be of significant value to students, teachers, practitioners, and decisionmakers. Moreover, it is simply a captivatingly good read about some of the rumbustious early times in Canada-US military, political, and legal history.  — Blaise Cathcart, QC, Major-General (Retired), Judge Advocate General of the Canadian Armed Forces (2010–2017)

Craig Forcese’s book on the Caroline affair is a tour de force. With the insight of a legal scholar, the instinct of a detective, and the thoroughness of a historian, he has traced the origins of a core principle in international law, starting with the attack in 1837 on the ship for which that principle is named. His highly readable account creates a rich context in which we can better understand the influence of the Caroline on the legal doctrine of self-defence as a justification (or a pretext) for war. Basing his argument on what really happened, he separates fact from fiction to contend that the Caroline principle has sometimes been put to broader use than its original purpose would justify. — Allan Rock, PC, Minister of Justice of Canada (1993–1997); Canada’s Ambassador to the United Nations (2003–2006)

This is an excellent piece of scholarship. The story of the raid on the Caroline is exhaustively researched and beautifully told. Having taught about the incident for decades, and read all the standard academic articles, I appreciate how very much of a contribution this book will make. — Professor Michael Byers, Canada Research Chair in Global Politics and International Law, University of British Columbia

Destroying the Caroline

Destroying the Caroline The Frontier Raid That Reshaped the Right to War

Craig Forcese

Destroying the Caroline: The Frontier Raid That Reshaped the Right to War © Irwin Law Inc, 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the publisher or, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), 56 Wellesley Street West, Suite 320, Toronto, ON, M5S 2S3. Published in 2018 by Irwin Law Inc Suite 206, 14 Duncan Street Toronto, ON  M5H 3G8 www.irwinlaw.com ISBN: 978-1-55221-478-7  e-book ISBN: 978-1-55221-479-4 Library and Archives Canada Cataloguing in Publication Forcese, Craig 1969–, author Destroying the Caroline : the frontier raid that reshaped the right to war / Craig Forcese. Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-1-55221-478-7 (softcover).—ISBN 978-1-55221-479-4 (PDF) 1. Caroline Incident, 1838.  2. Caroline (Ship).  3. Canada—History—Rebellion, 1837–1838—Campaigns.  4. Just war doctrine—History.  5. War (International law)—History.  I. Title. FC457.C3F67 2018

Printed and bound in Canada. 1 2 3 4 5  22 21 20 19 18

971.03'8

C2018-901172-6 C2018-901173-4

Now, as the Caroline will live in history, it seems a duty on my part to give a faithful and authentic account of an event which has been much exaggerated and misrepresented. — Rear-Admiral Andrew Drew (1864)1

Contents

List of Illustrations  xi Acknowledgements  xiii Preface  xvii Chapter 1: Introduction  1 Part I: The Destruction of the Caroline   7 Chapter 2: The Insurgency  9 Chapter 3: The Invasion  15 Chapter 4: The Canadian Militia  23 Chapter 5: The Caroline  31 Chapter 6: The Raid   37 Chapter 7: Aftermath  49 Part II: Debating the Caroline  57 Chapter 8: Grievance  59 Chapter 9: Claim  65 Chapter 10: Impasse  73 Chapter 11: Revival  81 Chapter 12: Renewal  91 Chapter 13: Debate  101 Chapter 14: Resolution  111 ix

Destroying the Caroline

Part III: The Merits of the Caroline   123 Chapter 15: The Law of the Day  125 Chapter 16: The Idea of War  129 Chapter 17: Imperfect Wars  135 Chapter 18: Self-Preservation at Copenhagen  141 Chapter 19: Neutrality and Its Limits  147 Chapter 20: Self-Defence and the First Seminole War, 1817–1818  155 Chapter 21: The Merits of the Case  163 Part IV: The Idea of the Caroline  167 Chapter 22: Freedom to War  169 Chapter 23: Banning War  179 Chapter 24: Collapse   191 Chapter 25: Banning Force  197 Chapter 26: Remembering the Caroline  203 Part V: A Very Modern Steamboat  209 Chapter 27: Trigger  211 Chapter 28: Imminence  221 Chapter 29: Necessity and Proportionality  233 Chapter 30: Unwilling or Unable  237 Chapter 31: The Caroline’s Legacy  243 Epilogue: The Protagonists’ Fate  251 Appendix: Chain of Citations and Misunderstandings about the Caroline's Core Facts  263 Notes  265 Index  359 About the Author  369

x

List of Illustrations

18

Map 3.1. The Niagara River Region, 1837. Digital image modified and supplied by Brock University Map, Data, & GIS Library.

20

Figure 3.1. Ontario. Navy Island, Niagara River, from the Canadian side. Bartlett, 1842. Engraving of a print by William Henry Bartlett, 1842. Antiqua Print Gallery / Alamy Stock Photo / GJJ8CM.

30

Figure 4.1. Commander Andrew Drew. Library and Archives Canada / Drew Portrait collection / c025729k

32

Figure 5.1. The Caroline. Niagara Falls (Ontario) Public Library / 100958.

34

Figure 5.2.  View of Schlosser Landing, Niagara. John W Barber & Henry Howe, Historical Collections of the State of New York: History and Antiquities (New York: S Tuttle, 1842) at 356.

40

Figure 6.1.  Picture of cutting-out of the Caroline. Painting by JB Read, 1838, of the attack on the Caroline said to be from Francis Bond Head’s A Narrative (London, 1839), reproduced in The Patriot War Along the New York-Canada Border by Shaun J McLaughlin (Charleston, SC: The History Press, 2012). xi

42

Figure 6.2. The capture in 1837 of the Caroline from Canadian Rebels in American waters after the failed Upper Canada Rebellion. From The Century Edition of Cassell's History of England, c 1900. Classic Image / Alamy Stock Photo / GAD5D1.

45

Figure 6.3. Fictionalized portrayals of the Caroline destruction. From a sketch by WR Callington, Engineer, Boston. J Grieve, litho, 33 Nicholas Lane, Lombard St. “The American Steam Packet Caroline Descending the Great Falls of Niagara, after being set on fire by the British, Decr. 29th 1837, with a distant view of Navy Island, Chippewa & Schlosser.” Published by J Robins, Bride Court, Fleet Street. © National Maritime Museum, Greenwich, London / PW4871. Drawn by G Tattersall. Engraved by J Harris. “The destruction of the Caroline, steamboat, by fire, on the Falls of Niagara, Upper Canada, on the night of Friday the 29th Decr. 1837.” Published by R Ackerman. © National Maritime Museum, Greenwich, London / PW4870. J Bouvier. “Destruction of the American Steam-boat Caroline by the British, who having set her on fire sent her with the killed and wounded down the Falls of Niagara on the night of Friday 29th Decr. 1838 [1837].” Printed by LM Lefevre, Newton St. © National Maritime Museum, Greenwich, London / PW4872.

79

Figure 10.1. Henry John Temple, 3rd Viscount Palmerston (1784–1865). Lithograph by C Wildt of a portrait by Conrad L'Allemand. GL Archive / Alamy Stock Photo / M224AN.

93

Figure 12.1. Daniel Webster, 1897. Joseph de Camp and L Prang & Co, “Daniel Webster.” Print. 1897. Digital Commonwealth, http://ark.digitalcommonwealth.org/ark:/50959/ w6634546p.

117

Figure 14.1. Portrait of Alexander Baring, Lord Ashburton, 1842. Collection of the New York Historical Society, USA / Bridgeman Images.

Acknowledgements

A

ny book is built by many hands. Unlike other books on which I have worked, this project required travel to archives, museums, and the sites which it describes. The support of the Social Sciences and Humanities Research Council (SSHRC) of Canada was invaluable in making this possible. My thanks go to SSHRC and to the anonymous reviewers who originally recommended my project proposal. Preparing such a proposal is a major undertaking, in which I was assisted by then-JD candidate Natalie Gajewski. Thanks also to the University of Ottawa Faculty of Law research office, and then-Vice Dean Research Elizabeth Sheehy, for their assistance in that process. More generally, this project benefited from the willing and enthusiastic support of colleagues at the University of Ottawa law school and at our partner institution, the Norman Paterson School of International Affairs, Carleton University. In both places, matters of international law in war and peace have figured prominently in our teaching, research, and discussions. On a sadder note, I would like to think that my dear, departed colleague Nicole LaViolette, whose work on the laws of war was cut short by her untimely passing in 2015, would have relished the chance to debate this book’s content. xiii

Destroying the Caroline

Once the project was underway, four JD-candidates provided valuable — essential — research assistance: Erik Shum in 2016 and Leah Cummings, Alexander Hobbs, and Peter Knowlton in 2017. I have worked with many research assistants over the years and these were among the most dogged and organized. I shall watch with interest as their careers flourish. A book project is a consuming obsession. This one has drawn me in pursuit of a particularly eclectic array of facts and figures. As always, I thank my wife Sandra Cotton and my daughter Madeleine Forcese for their support throughout the lengthy research and writing process. When consumed by a project, I fear I am a constant presence in my home office, and yet also a long way away. And when not writing, I was often following a different trail: I must acknowledge my family’s patience as I dragged them to obscure historical markers on what was once the Niagara frontier; small-town museums in southern Ontario; and overgrown Victorian graveyards, local libraries, and regional archives in the United Kingdom, all in search of missing links in the story I tell in this book. I also thank the staff of those places, and especially those at the Woodstock Museum National Historic Society, the United Kingdom National Archives, the Hampshire Archives and Local Studies, and the Archives of Ontario. An amazing amount of historic material is now digitized in places such as Google Books and Archive.org. But the needle in the haystack is still available only in those records maintained by these custodians of our past. Gratitude goes also to Michael Byers, revealed to me as the peer reviewer organized by Irwin Law for this book. It is no small thing to read a full book manuscript, and I benefited from a careful assessment and especially helpful comments by one of Canada’s leading academic lights in international law. Similarly, two other cherished luminaries of international law and relations, Blaise Cathcart and Allan Rock, generously took of their scarce free time to review this book, and help make it better. And closer to home, my father Dennis Forcese supplied wonderful suggestions, addressed from the perspective of an aficionado of history, and the ideas that matter in it. Whatever flaws remain in this work reflect on me, and not on any of these readers. xiv

Acknowledgements

And of course, as always, my thanks go to Irwin Law. Jeff Miller embraced this project with his usual enthusiasm and supported it throughout. Thanks go also to members of the Irwin team for their diligence and hard work: Lesley Steeve, Heather Raven, Kate Revington, and Britanie Wilson. I end these opening remarks with two brief comments on terminology, one on style and one on methodology. First, the spelling of some protagonists’ names varies between sources. In each instance, I have preferred the most dominant spelling. Second, in this book, I usually use the term “insurgents” to describe the members of the William Lyon Mackenzie uprising. This term was also employed by chroniclers of the time — for instance, the British Crown law officers spoke of “Canadian Insurgents.”1 Other terms suffer from various deficiencies. “Pirates” was a term ultimately acknowledged by both American and British authorities as inapplicable used in relation to Mackenzie and his followers. At any rate, pirates are motivated by financial gain, not political ideology. Likewise, “banditti,” “brigands,” or “freebooters” — ​all terms in circulation during the period — connote an avaricious rather than political reason for violence. “Rebels” do have a political agenda, but the term is underinclusive, given that the many American members who joined the insurgency by the time of the key events in this book were not rebelling against a Crown to whom they owed allegiance. “Patriots” was the nom de guerre of these American supporters and sympathizers — but that term was itself a value judgment not shared by either the British or the Ameri­can governments. “Insurrectionist” is an apt descriptor. But it has an antiquated feel to it. “Insurgent” is a concept that straddles the centuries well — it accurately describes the situation in 1837 and those in more modern conflicts involving “non-state actors.” And that matters, given the contemporary relevance of the long-ago events on which this book focuses. In relation to style, I have opted for detailed endnotes. Many of these refer to letters exchanged between the book’s chief protagonists. I have omitted the word letter to avoid undue repetition. I have indicated the repository for these letters (for example, in published xv

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collections or in archived files), fully cited the first time in each chapter where that repository appears, and cross-referenced thereafter. And finally, a methodological note: there are disputes concerning aspects of the Caroline incident. In this book, I draw on accounts and affidavits sworn by those who participated in the event, and try to trace the most plausible narrative (noting discrepancies where those seem important). I also rely heavily on diplomatic materials and correspondence of the period. In truth, however, this testimony and these reports are themselves contradictory, and especially inconsistent as between affiants supplied by the British versus the American side in the dispute. And, of course, protagonists of various stripes had their own incentives to portray the incident in one way or another. I have tried to capture the entire range of testimony, without being able to resolve all inconsistencies.

xvi

Preface

L

ooking southeast from the escarpment above the famous Niagara Horseshoe Falls, Navy Island appears as a flat, forested feature, dividing the western channel of the river as it sweeps on either side of Grand Island, New York. To a casual eye, there is nothing remarkable about Navy Island — no one lives on it, and Parks Canada has closed the small, erosion-prone landmass to visitors for ecological reasons. Where it passes by the island, the river is a bright, aqua-blue ribbon, but ordinary when contrasted with the magnificent cataracts just downstream. Probably for this reason, most visitors seem to venture no farther upriver than the overflow parking area west of the international control dam. As I visit on a sunny day in late June 2017 — first on an early morning run, and later with my patient family by car — the Niagara Parkway has virtually no traffic past the old power station. There are even fewer tourists on the Niagara Parkway upriver from the little town of Chippawa. And we are alone in stopping in the pullover area near Service Road 30 to view the fast-moving river and to peer at Navy Island, only a few hundred metres away. Those who do pause here may simply sit on the viewing bench to enjoy the scenery. Others may also decide to visit the historical marker, xvii

Destroying the Caroline

standing slightly off-kilter a dozen or so metres from the parking lot. The 1960 historical plaque announces “The Destruction of the Caroline, 1837” by Canadian militia under the command of Andrew Drew. Those from Woodstock, Ontario, will know Drew as the Royal Navy commander who immigrated to Upper Canada and co-founded Woodstock as an escape from the impecunious life of a half-pay naval officer in the reduced force of the post-Napoleonic period. But as we snap the obligatory family “selfie” in front of the marker, I cannot say how many others who tarry to read its brief words have ever heard of Drew or his exploit. I suspect those who have are few — I had not, before I studied international law in law school. And even after those studies, I did not fully appreciate the reasons for this long-ago event on the fringes of a vanished empire. Just a little farther down the Parkway, the War of 1812 is remembered at the Chippawa Battlefield. Here, a refurbished memorial and a panoply of modern display panels announce the events of that earlier, better-known clash between the United States and Great Britain. But while the accompanying map and description show the location of “Ussher’s home” adjacent to the 1814 battle site, they do not record that Captain Edgeworth Ussher (Usher) and his home were shelled by William Lyon Mackenzie’s insurgents, occupying Navy Island a few years after the 1814 battle. Nor do they note that individuals tied to that insurgency came to the house after the Caroline’s destruction, perhaps searching for Drew, but certainly killing Usher. We conduct a similar reconnaissance on the New York side of the river. Here, there are even fewer indications of past events. Nothing remains of “Schlosser,” the place where the Canadian and American insurgents had berthed the Caroline at the time of its destruction. The historic fort of that name is reduced to a lonely chimney, moved downstream from its original location. And that original site itself is observed only by a panel display, bookended by two tall, grey, water pumping stations at the main pull-over area on the Niagara Scenic Parkway. These historical markers make no mention of 1837. And even in 1837, the fort was no more — “Fort Schlosser” was a wharf and a tavern upstream of the original stockade. Of this even more modest xviii

Preface

settlement, there is no remnant at all. I can estimate its location only by comparing the riverscape with sketches from the period. Where I think the tavern and wharf must have been, I find only a small pumping station and a single fisherman. Farther upstream, we cross the North Grand Island Bridge to Grand Island, taking the first exit to the West River Parkway. Here we stop at the Eagle Overlook — a boat launch on the American side of the Niagara River channel bisected by Navy Island. From somewhere near here in December 1837, the insurgents crossed to Navy Island to proclaim the brief-lived “Republic of Canada,” to bombard the little settlement of Chippawa (and Captain Edgeworth Usher’s home) on the Upper Canada mainland, and to plot a renewed uprising in the British colony. The river here flows less quickly than on the Canadian side, and Navy Island is closer to this American shore than it is to the Canadian mainland. But again, neither here, nor farther up the parkway, do I find any memorial to those distant events. In both their geography and more generally, the events along this river in December 1837 — a spasm of conflict that almost pitched Great Britain and the United States into another war — are preserved as anecdote. They are a footnote along a frontier once beset with uncertainty, now a shared vacation spot. But among those few who do stop and wonder at Andrew Drew’s raid, even fewer may appreciate the enduring significance of these events. The Caroline’s destruction is the event with the most lasting impact on international law ever to have commenced on Canadian soil. It lives on in a remarkable manner in the foreign affairs chancelleries of the world, and especially in the minds of the legal advisors who opine on the lawfulness of conflict between and within states. Indeed, one cannot understand the modern international law on the use of military force — known as jus ad bellum, the “right to war” — without an appreciation of “the Caroline affair.” That incident, and the diplomatic understanding that settled it, have become the shorthand in international relations for when force can be used in self-defence, in far-off places, and in different sorts of wars. And since conflicts can only rarely be commenced for anything other than self-defence, that shorthand recurs frequently. xix

Destroying the Caroline

As a professor of international law, I have taught the Caroline  — ​ and the rules said to derive from it — for years, but without fully appreciating the details of that incident. Like many others, I have treated it as an important event whose impact exceeds that which international doctrine might predict. But as I have discovered, the version of events transmitted through histories of the period, and in international law textbooks and articles, is abridged and sometimes misleading. I set out to write this book because it is time to remember the Caroline, and to explore its resonance in today’s world. This work is not just for those of us whose professional lives draw us to the study of international law, relations, and military affairs. I do not shy away from a careful probing of law and policy. But I also write for a broader audience — one with an interest in things done by our forebears and how they have meaning even today. More than that, I took up this project because of a confluence of anniversaries. One of these is Canada’s own birthday, prompting a renewed interest in this country and its contributions. My visit to the site of the Caroline’s destruction was in June 2017, only days before Canada’s 150th anniversary as a confederated entity. As I complete this book, another anniversary arrives: 175 years have passed since the most famous diplomatic exchange in the Caroline dispute, one between US secretary of state Daniel Webster and the British envoy, Alexander Baring (Lord Ashburton). And as this book is prepared for publication, the 180th anniversary of Commander Drew’s consequential raid on the Caroline at Schlosser, New York, is upon us. In writing this work, I have revisited the events of the night of 29 December 1837, teasing out details and compiling evidence from affidavits sworn by eyewitnesses, memoirs penned by protagonists, and correspondence authored by the diplomats of the day. I have sought to open a window to the lives and thoughts of the militia leaders such as Commander Drew, as well as the politicians and diplomats who populate this story — people such as Daniel Webster, Viscount Palmerston, and the officials who served them. I evaluate the Caroline raid against the expectations of the era, and then trace its trajectory through to the international relations of today. xx

Preface

The story of the Caroline is one of a great power — Britain — ​ in confrontation with a fragile, lesser state then emerging as a regional power: the United States. It is one of muskets and cutlasses; steamboats and six-pounder cannons; and of white, Anglo-Saxon men, their thoughts, deeds, and daring-do. In other words, it is the thing of bygone days, animated by a different ethos. But even so, when today’s powers decide who they fight, and in what circumstances, they prove William Faulkner’s famous observation: “The past is never dead. It’s not even past.”1 Craig Forcese Ottawa, Canada August 2017

xxi

Chapter 1

Introduction [I would like to] ask the Prime Minister, what assessment he has made of whether the Caroline principles on the right to self-defence under Article 51 of the UN Charter have been strictly applied by the UK Government. — Tom Watson, MP (West Bromwich East) to David Cameron, Prime Minister of the United Kingdom (8 September 2016)1

I

n early life, twenty-one-year-old Reyaad Khan was a straight-A student who dreamed of being prime minister of his country of birth, Britain. By 2010, he was recording videos describing the challenges of growing up in a deprived inner-city, and voicing concern about his government’s expenditure of resources on “illegal” wars. In 2013, he travelled to Syria and joined Daesh, the terrorist movement better known as the “Islamic State,” ISIS, or ISIL.2 As Daesh expanded in Iraq and Syria, Khan became, in the words of British intelligence, a “significant, ongoing and imminent threat to the UK.” He and co-conspirators were part of a “concerted and prolific online campaign to recruit, task and encourage operatives in the West to conduct attacks in the name of ISIL.” Khan became a “prominent” attack planner. And he provided aspiring terrorists with instructions on improvised explosive devices, and possible targets in Britain. This conduct was connected to plots thwarted by UK authorities.3 On 21 August 2015, a Royal Air Force “Reaper” drone targeted and killed Khan in Syria, also slaying another Briton and a Belgian confederate.4 As the first lethal drone strike conducted by Britain 1

Destroying the Caroline

outside a full military campaign, the government’s “precision air strike” prompted consideration of its legality. Days after the attack, the British prime minister rose in the House of Commons to declare the killing “an act of self-defence.”5 That same day, the British ambassador to the United Nations presented a letter to that body’s Security Council repeating this claim and alleging that Khan had been “planning and directing imminent armed attacks against the United Kingdom.” The airstrike was “necessary and proportionate.”6 The ensuing debate over the killing precipitated a report on the government’s legal reasoning by a regular parliamentary committee, and a canvassing of both legal and operational issues by Parliament’s specialized Intelligence and Security Committee.7 Both studies raised questions about whether this lethal force used as counter-terrorism could be reconciled with the international law governing the use of military force in “self-defence.” And part of this uncertainty stemmed from application of what parliamentarians called the “Caroline test.”8 In invoking this standard, British lawmakers followed a common pattern in today’s international debates over armed conflict. When countries use hard power — that is, military force — they often do so pointing to events that took place more than a century and a half ago, in a very different part of the world. On 29 December 1837, a small band of Canadian militia, commanded by a British naval officer, sank the American steamboat Caroline on the American side of the Niagara River, dividing today’s Ontario, Canada, from New York State. That raid sparked a diplomatic crisis between the United States and Britain, one in which the legality of armed force — and specifically, its use in self-defence — was heatedly debated. That controversy fashioned language that countries would come to deploy in deciding when they may use force in self-defence. This has mattered. After aggressive war was outlawed (most dramatically by the United Nations Charter in 1945), self-defence evolved as the most consequential remaining source of legal justification for one state’s use of hard power against the government or territory of another. As few states today use such force without at least some effort to justify it, and most justifications invoke self-defence, there 2

Chapter 1: Introduction

are now few conflicts whose legitimacy go unmeasured against the criteria of the Caroline affair. To be sure, the Caroline incident and international law have not stopped war between countries. No law is without its violations. And international law, especially, is often derided for its inadequacies. It has no bailiff or police force able to enforce punishment for violations. But international law provides a grammar for describing, defining, and potentially resolving disputes.9 In any language, grammatical standards can be offended. But grammar is not endlessly supple, and shapes both discourse and perception. Likewise, international law sets expectations that influence how state conduct is perceived, rationalized, and, to a degree that is debated, decided. This is true even in war. War among states is now less common than it was.10 Some contest the role of law in contributing to this change,11 and warn that there is nothing inevitable about it.12 But law has complicated the political calculus of war.13 The plausibility of any state’s excuse for war is now assessed according to the grammar of international law. The political need to justify does not always stop wars, but law places aggressive war beyond the pale and increases the cost for political leaders who ignore this norm. The threat of illegitimacy makes it harder to fight wars of choice, at least without risking frayed diplomatic and economic relations, domestic political backlash (especially in today’s democracies), and potentially, personal criminal culpability.14 As the British foreign secretary observed of a peace treaty in 1856, legal provisions may not “prove a barrier” to war’s renewal, but they do “oppose an obstacle.”15 The Caroline doctrine is one of law’s obstacles to war. It is not an insurmountable hurdle, but in the post–Second World War period, it has had a pre-eminent role in defining when and how armed violence can be used as a tool of statecraft. The events of 29 December 1837 have, in this way, fashioned today’s world. All this did not happen overnight. Nor was it inevitable. Indeed, the protagonists along the Niagara River in 1837 would have been astonished that their conduct is now used in assessing the behaviour of today’s great powers. The Caroline is remembered today, often 3

Destroying the Caroline

partially and in a stylized manner, when drones kill terrorists and state leaders contemplate responses to adversaries who are threatening military action. But it is remembered by chance, and not design. This book is about the events that constitute that accident of history and created its modern echo. It joins other recent works as a conscious defence of the notion that, even in international relations, ideas matter,16 although perhaps not always in predictable ways. It divides this defence into five parts. Parts I to III tell the story of the Caroline as an event in Canadian, British, and American relations. In Part I, I approach the events of 29 December 1837 as an unresolved “cold case,” examining the incidents leading to it and then piecing together the (sometimes contested) evidence of what happened that night and in its immediate aftermath. Part II focuses on the political and diplomatic response to the incident, tracing the fractious debate between Britain and the United States, the near-descent to war in the early 1840s, and then the diplomatic settlement resolving the matter. In Part III, I ask “who was right” in that debate, focusing on the legal arguments made and assessing them against the standards of the day. In parts IV and V, I trace how the Caroline — and specifically, the legal principles articulated to settle the matter — morphed from passing controversy along the Canadian-American frontier to a global self-replicating idea (a “meme”) in the law and practice of war. In Part IV, I trace the Caroline’s trajectory through the writings of the leading Anglo-American jurists of the nineteenth century. I point to how understandings of events on the Niagara River in 1837 changed with time, to a degree that by the period between the two world wars, the Caroline had become less an historical event, and more a universal formula concerning the reach of self-defence in war between states. I examine also how during this period, and then especially after the Second World War, self-defence, grounded in the Caroline doctrine, became the primary basis for states to justify their uses of force. Part V asks what this Caroline doctrine means for today’s world, highlighting the various ways in which it has been used — and contorted — to reflect new challenges in international relations. Whether the Caroline has now been stretched further than its principles can 4

Chapter 1: Introduction

bear is a matter of debate. Less easily disputed is that it offers more constraint on the exercise of hard power than would exist in its absence. That is a remarkable outcome for a brief clash in a forgotten conflict on North America’s periphery. And after 180 years, that legacy is overdue for an accounting.

5

Part I

The Destruction of the Caroline

Of many acts which by our men Right gallantly were done, I’ve spun my verse to such a length I can relate but one. And that the very gallant act Of Captain Andrew Drew, Whose name must be immortalized, Likewise his daring crew. A Yankee steamer oft had tried The rebels aid to bring; This English seaman swore that he Would not allow the thing. The Captain and his valiant crew. Whose names I wot not all, From Schlosser cut the steamboat out And sent her o’er the Fall. Oh! then the Yankees stormed outright, And spoke of reparation; A mighty flame then rose through this Tobacco-chewing nation. — New Words to an Old Song1

Chapter 2

The Insurgency “‘What,” asked Canada, “is meant by Neutrality?” “Excite fresh men t’invade that monarch’s shore, And fill a loyal country with alarms, And give them men, with warlike stores and arms Encourage brigands and all aid supply; I guess that’s strict, downright Neutral-i-ty!” — Robina Lizars & Kathleen MacFarlane Lizars (1897)1

I

n December 1837, the American republic was just over a half-century old and today’s Canada did not exist. The United States was not yet a continental state and British North America comprised a vast northern hinterland extending from a series of small settler colonies, clustered mostly along the northeastern frontier of the United States. Two of these possessions comprised “the Canadas”: Upper Canada and Lower Canada (the southern cores of today’s Ontario and Quebec). This was bound to be a complicated relationship. The boundaries between British North America and the expanding United States remained unsettled in both the east and far west, creating political tensions. And within living memory, Britain and America had fought two wars — one of American independence (1775–1783), and the another from 1812 to 1815 as a North American afterthought to the Napoleonic Wars. Against all odds, Britain retained control of its northern possessions after both conflicts, but the example of the brash democratic republic to the south posed perpetual challenges to British administration. And while the phrase would not be used for several more 9

Destroying the Caroline

years, the United States itself was, by 1837, inclined to its “manifest destiny” in North America, extracting territory along its southern frontiers with Spain and Mexico and in conflict with Indigenous nations in both the south and west. The principle of territorial expansion, if not always the practice, was one of the few matters on which most Americans agreed.2 Still, while many irritants persisted in British-American relations in the 1830s, war between the two powers seemed remote. Writing in 1835, the new British ambassador in Washington, Henry Stephen Fox, opined that there was no other nation less likely to be provoked to hostility toward Britain than the United States.3 This would change. In December 1837, the Canadas were briefly embroiled in minor rebellions against British administration.4 At the time, the colonies were ruled by appointed lieutenant-governors, under the technical (if not always actual) suzerainty of a governor general for British North America. In both Upper Canada and Lower Canada, these British governors generally acted in the interest of, and were supported by, an exclusive local elite.5 Known as the Family Compact in Upper Canada, these elites occupied almost all the colony’s highest appointed public offices. Together with a less exclusive grouping comprising conservatively minded settlers, they constituted the “Tory” element of the province, one that was generally suspicious of democratic and republican influences.6 Although the colonies had elected assemblies, these bodies exercised little direct influence over government administration.7 In response, a reform movement clamoured for responsible government; that is, allowing elected assemblies to determine the membership of the governing executive, a concept well established by that era in Great Britain. Chief among the Upper Canada reformers was William Lyon Mackenzie. A Scottish immigrant to the colony, the newspaper entrepreneur, polemicist, and politician had been blocked by the Family Compact and its supporters from pursuing a reform agenda in the elected assembly. And indeed, Mackenzie had been repeatedly elected to, but then expelled from that body in the 1830s.8 10

Chapter 2: The Insurgency

By that decade, the British colonial office was anxious to resolve political tensions in the Canadas. In search of a reform-friendly administrator instead of the traditional career military officer, it appointed the forty-two-year-old Francis Bond Head as Upper Canada’s lieutenant-governor in 1835. Described as a small, active man whose acute features reflected “an expression of mingled humour and benevolence,” Head was a son of a financially distressed family and a veteran of the Napoleonic Wars. Subsequently, he had briefly managed a mining enterprise in South America (where his horse-riding habits had earned him the nickname “Galloping Head”); and in England, Head had also dabbled in social reform projects and earned minor fame as the author of several books about his travels.9 But he had limited administrative experience — only a year as commissioner under the Lord Melbourne government’s new poor law, an early social services system. That made him an unusual choice as lieutenant-governor.10 When Head arrived in Toronto in 1836, he was generally welcomed by the reformers. But the cantankerous Mackenzie treated the new governor with disregard,11 and in a first meeting that left Head with a lasting impression, “raved in all directions about grievances here, and grievances there.”12 Head did initially break the monopoly of the Family Compact, appointing three reform-minded members to the colony’s powerful executive council. But he refused to be bound by the counsel’s advice or to constitute a “provincial ministry,” a core requirement of responsible government. Head viewed such an evolution as possible only through a legislated change to the province’s constitution,13 enacted by the British Parliament. His resistance provoked the resignation of the reform-minded executive council (who Head replaced with more conservative members). It also galvanized a subsequent refusal by an enraged legislative assembly to vote approval for new tax measures required by the administration. Head responded by dissolving the assembly for new elections. In that 1836 contest, Head was supported by the religious establishment and by most voters, many of whom had fled the American Revolution and had no love 11

Destroying the Caroline

of the “republicanism” they came to perceive among the reformers. The reformers were resolutely defeated by Tories, and Mackenzie himself lost his seat.14 Shortly after, the British government recognized Head with a long-​ sought baronetcy. But Head’s Canadian triumph was short-lived. In 1837, Head refused Colonial Office instructions to appoint to public office two of his most stern Canadian opponents. When the colonial secretary, Lord Glenelg, insisted, Head resigned.15 But before a successor could be appointed, outright rebellion broke out in neighbouring Lower Canada, precipitated by many of the same grievances that fuelled the reformers in Upper Canada. Unwisely, Head dispatched his province’s entire military garrison to assist British forces in Lower Canada. Mackenzie and the more extreme elements of the reform movement saw this as an opportunity.16 They assembled their own ragtag insurgency in December 1837. The result was later described, reasonably, as less civil war than “civil commotion.”17 On 4 December 1837, what Head called the “most perfect tranquility” of Upper Canada was disturbed by reports that 500 men in arms were approaching Toronto, led by Mackenzie. Head (himself armed with two double-barrelled guns and a brace of pistols) hastily issued a proclamation summoning a loyal militia. Government supporters rallied quickly and on 7 December dispersed the disorganized insurgents at Montgomery’s Tavern, north of the city, “without losing a man.”18 Farther to the west in the province, a similar, smaller rebel band (under the command of an American by birth, Dr Charles Duncombe) was also chased away. After the 7 December clash, Mackenzie fled Upper Canada to Buffalo, New York, in the United States. There — at the largest public meetings held in that city by that date — he rallied help, supplies, and arms from American supporters.19 He found a receptive audience, and in so doing added a consequential American dimension to the Upper Canada turmoil. In 1837, the United States’ northern frontier was a place of small farmers and traders, inclined to the Jacksonian Democrat view of the British as hereditary enemies. Many of these men had no winter 12

Chapter 2: The Insurgency

employment, a condition aggravated by a serious 1837 “Panic” — one of the young republic’s periodic economic crises.20 Fuelled by the collapse of a land speculation bubble and a financial crisis, the Panic swept through the American economy, shuttering tens of thousands of businesses.21 These hardships swelled the numbers of idle recruits, willing to seek money, fame, and land by resisting British government in Upper Canada.22 In personal correspondence, Head put it more darkly: driven by a resentment of British power and an avaricious hunger for “the fat lands of the Upper Province, and the splendid water of the St. Lawrence,” the Americans “hate us with a mortal hatred — ​they hate us personally.”23 Head wrote to New York governor William Marcy expressing concern about the public meetings and efforts in Buffalo “to procure countenance and support among the inhabitants of that city to the efforts of the disaffected in Upper Canada.”24 And anxious to maintain neutrality during the strife north of the frontier, the US federal government had been following developments in Canada. During the rebellions in Canada in early December, the newly installed president, Martin Van Buren, issued a proclamation exhorting American citizens to cease and desist from violating neutrality laws — rules that barred American participation in foreign conflicts.25 He also urged Congress to strengthen those laws.26 Meanwhile, the US secretary of state, John Forsyth, dispatched missives to border state governors, federal district attorneys, and customs officers insisting on the enforcement of the United States’ neutrality laws.27 He also instructed US district attorneys in border states to be attentive to all movements of a hostile character contemplated or attempted within your district, and to prosecute without discrimination, all violators of those laws of the United States which have been enacted to preserve peace with foreign Powers, and to fulfil all obligations of our treaties with them.28

Forsyth wrote to the New York district attorney after Mackenzie’s arrival in Buffalo, instructing him to “exercise constant vigilance” and to deter the supply of men and material to the insurgents.29 13

Destroying the Caroline

But these federal efforts, and similarly themed proclamations by the Buffalo mayor and New York government, did not diminish the American response to Mackenzie’s call,30 as supporters flocked to his renewed insurgency. From Washington, British Ambassador Fox observed that the US government’s “desire to avoid a war with England is certainly sincere; but their means of interference, in contradiction to the popular will, are almost null.”31 And by late December 1837, federal authorities on the frontier themselves reported to Van Buren an inability to repress the burgeoning insurgent militia, unless supplied with troops.32 By 12 December, the insurgents had reportedly acquired 400 rifles, bearing the mark of a manufactory preparing weapons for the US government. The force also acquired two cannons, at least one of which was said to be the property of a corps of state militia artillery.33 Whether local American authorities were unable to stop the flow of these purloined arms, or simply unwilling, became a matter of controversy. One American witness, later swearing a deposition in Upper Canada, claimed that the resident US marshal made only half-hearted attempts to seize weapons being stockpiled by the insurgents — and indeed, he presumed the existence of a “contrived plan” to let slip through at least some arms.34 And matters were not helped when New York authorities declined a Canadian extradition request for Mackenzie, stating that state law precluded such removals for political offences.35 (Indeed, the British believed that at one point in late December, Mackenzie was arrested by the federal district attorney, but was released on bail with the financial aid of Buffalo supporters.)36 And so still free to conspire in Buffalo, Mackenzie fell into league with Rensselaer Van Rensselaer — the wayward scion of a New York military family who claimed (falsely) martial experience in the South American revolutions of the era. Fired up by the example of San Houston’s recent rebellion against Mexico in Texas, Van Rensselaer and another American sympathizer, Thomas Jefferson Sutherland, plotted a renewed conflict in Upper Canada. To that end, they conceived the occupation of Navy Island37— a 123-hectare (304-acre), mile-long island lying on the Canadian side of the Niagara River. 14

Chapter 3

The Invasion BRAVE CANADIANS! Hasten to join that standard, and to make common cause with your fellow citizens . . . The opportunity of the absence of the hired red coats of Europe is favourable to our emancipation. And short‑sighted is that man who does not now see that, although his apathy may protract the contest, it must end in INDEPENDENCE, freedom from European thralldom forever! — Proclamation by William Lyon Mackenzie, Navy Island (13 December 1837)1

N

avy Island splits the Niagara River, approximately three miles (five kilometres) upstream of Niagara Falls. Lying across a navigable channel from New York’s Grand Island and separated by a more treacherous passage from Chippawa, on the Canadian mainland, its status as Canadian territory in 1837 reflected a complicated past. What is now called Navy Island was visited and used by Indigenous peoples in the distant past.2 Within historical times, the Niagara region was inhabited by the Neuter, a nation displaced by the Seneca. The Seneca then fell into sporadic conflict with the French, the first Europeans in the Niagara region in the late 1600s. After misleading the Seneca into believing they were constructing a trading station, the French built Fort Niagara in 1726 at the mouth of the Niagara River at Lake Ontario. Britain, in alliance with the Iroquois during the Seven Years’ War, captured this fortification in 1759, following a protracted campaign that reached the Navy Island region. The next year, the British constructed a stockade on the Niagara River, upstream from the Falls. This settlement — which would feature in the story of the Caroline — was named Fort Schlosser in 1763.3 15

Destroying the Caroline

Meanwhile, the British required a shipyard to construct vessels to ply the upper Great Lakes. In 1761, the British military established a manufactory on the southeast side of what was soon dubbed “Navy Island.” Facilities on the island included, at their peak, work areas, barracks, and ultimately, a defensive palisade.4 The several schooners and sloops built at Navy Island were the first Royal Navy vessels to sail the Great Lakes above Lake Ontario.5 At the time of this first occupation, Navy Island remained Indigenous — likely Seneca — territory. However, in 1763, a Geneseo Seneca contingent ambushed a British wagon train, and then a relief column, at a portage downstream of the Falls. In the skirmish, the Seneca killed dozens of British soldiers.6 Described by some scholars as part of Pontiac’s War (a broader effort to expel the British),7 the hostilities may also have been sparked by a labour dispute following the displacement of Seneca porters after improvements at the portage.8 Whatever its causes, the British sought reparations for the attack from the Seneca after the wider uprising failed.9 As part of a broader treaty negotiation with twenty-four First Nations,10 the Geneseo Seneca — now short of food — ceded to the British a strip of land on both banks of the Niagara River, from Lake Ontario past the Fort Schlosser area.11 The Seneca transferred the islands above the Falls (among them, Grand Island and Navy Island) to the British negotiator Sir William Johnson, in his personal capacity. The resulting 1764 treaty came a year after the Royal Proclamation of 1763. That proclamation, a landmark in British-Indigenous relations, prohibited cessions of land from Indigenous nations to individuals, rather than the Crown. And so, in keeping with this royal admonishment, Johnson promptly passed the title to the islands to the British government.12 Soon after, the arrival of Loyalist refugees displaced by the Revolutionary War — among them, Mohawk led by Joseph Brant — created demand for new land settlements in the region. A 1781 treaty between the British and Mississaugas Nation ceded territory along the full length of the western bank of the Niagara River to the Crown.13 Taken together, these 1764 and 1781 treaties extinguished Indigenous title to the islands.14

16

Chapter 3: The Invasion

Navy Island was, however, no longer of any real significance. By this point, its military use had waned and the region played only a limited role in the American Revolutionary War. But that conflict created new doubts about the island’s legal status: the 1783 Treaty of Paris terminating the Revolutionary War did not clearly demarcate the boundary between New York and Canada. Navy Island was occupied by British troops during the War of 1812,15 but whether it was British or American territory remained unclear until the conclusion of that second war. A subsequent binational boundary commission then affixed the border along the Niagara River, applying a formula tied to the rate of flow along the river’s channels.16 This calculation resulted in Navy Island’s demarcation as part of Canada.17 It also meant that Navy Island lay across a channel to Grand Island, United States, that was more easily navigable than the channel separating it from the Canadian mainland. In mid-December 1837, Rensselaer Van Rensselaer and William Lyon Mackenzie crossed from the New York mainland to Grand Island. Discouraged to discover only twenty-four supporters waiting for them, the insurgents nevertheless rowed to Navy Island.18 They met no resistance, and they were unimpeded in their passage by American militia assembled nearby.19 Navy Island itself was largely deserted by 1837 — “there were but two houses or shantees on [the island],”20 inhabited “only by a widow woman and her son.”21 Upon their arrival, the insurgents admonished the resident widow and her family not to resist and promised her compensation for any damage to her property.22 The subsequent occupation of Canadian territory would last a month — until 14 January 1838.23 It is difficult now to see the strategic virtue of this occupation. Certainly, Navy Island did have the advantage of being close to the American side, and could be easily supplied and defended from counterattack from across the Niagara River.24 So close to the Horseshoe Falls, the island was in heavy current to the Canadian shore — so heavy, in fact, that traversing to and from the Canadian mainland was described by British observers as risky.25

17

Destroying the Caroline

Map 3.1.  The Niagara River Region, 1837.

DIGITAL IMAGE MODIFIED AND SUPPLIED BY BROCK UNIVERSITY MAP, DATA, & GIS LIBRARY.

18

Chapter 3: The Invasion

But just as a British counterattack across the river was difficult, so too was any invasion of the Canadian mainland. Moreover, the time of year was hardly auspicious: by the second half of December 1837, the mean temperature in the region was a chilly minus three degrees Celsius (twenty-seven degrees Fahrenheit).26 The invader’s purpose may, therefore, have been more symbolic than anything else, designed to inflame public opinion in favour of the rebels. The British would later accuse Mackenzie of occupying the island for “the avowed object of invading Canada, and establishing a provisional government.”27 But Mackenzie was not the tactical mind behind the occupation. Instead, the Canadian rebel seems to have been swept along by the ambitions of his American supporters. Van Rensselaer believed (against all evidence) that Upper Canada was ripe for revolution — all that was required to rally republican forces in the colony was “one successful battle fought and a good stand maintained for a time.”28 On Navy Island, Mackenzie was named head of a “provisional government,” complete with its own star-emblazoned flag and great seal. On 13 December, he issued a florid proclamation condemning British administration in Canada and urging support for his cause. He also put a bounty on the head of Francis Bond Head, the Upper Canada lieutenant-governor.29 Mackenzie followed with a second proclamation on 19 December, promising free public land in Canada and $100 to those who rallied to the cause.30 A Mackenzie propaganda flyer dated a few days later — “Correspondence from Navy Island!” — ​cried “To Arms!” and in overwrought prose called on supporters to “gird on your armor and hasten to the battlefield” to “help our suffering brethren in Canada.”31 Soon, followers did join the original company on Navy Island. Initially, most were British subjects, but by the end of 1837, “the American element was probably in the ascendant.”32 The insurgents were bolstered by “several pieces of artillery and other arms” procured (the British later claimed) from New York State armories and “openly transported to Navy Island, without resistance from American authorities,” including the militia company stationed on Grand 19

Destroying the Caroline

Figure 3.1. Ontario. Navy Island, Niagara River, from the Canadian side. Bartlett, 1842.

ANTIQUA PRINT GALLERY / ALAMY STOCK PHOTO

Island. The invaders “began to entrench themselves, and threatened that they would in a short time make a landing on the Canadian side of the Niagara River.”33 Trees were felled and stacked along the island’s banks as a defensive measure against British counterattack, and a road was carved around the island’s margin, allowing rapid movement of men and cannon.34 The British seemingly had little clear sense of the self-styled “Patriot” force’s size. Leaders of the Canadian militia assembling in Chippawa estimated that by 25 December, the fighters on the island would reach 700 or 800.35 Francis Bond Head described the invading force as numbering “from 5,000 to 15,000.”36 Both numbers were exaggerations — a witness on the island on 29 December placed the insurgents’ complement at 250, with possibly an army of 1,000 ready to join the expedition.37 But whatever their number, the insurgents did deploy their artillery: “This band of outlaws,” complained Head, acting in defiance of the laws and government of both countries, opened fire from several pieces of ordnance upon the Canadian 20

Chapter 3: The Invasion

shore, which in this part is thickly settled . . . They put several balls (six-pound shot) through a house in which a party of militia-men were quartered, and which is the dwelling-house of Captain Usher, a respectable inhabitant.38

This is a plausible claim — the Usher (Ussher) homestead was across the river from the southwestern end of Navy Island39 — approximately 700 metres (2,300 feet), and thus within the range of the six-pounder cannons of the era.40 The insurgent shelling was also directed at Canadian boats on the river41 and toward the shore. There, it killed a horse from underneath its rider — “but happily did no further mischief.”42

21

Chapter 4

The Canadian Militia To thee! high-hearted Drew, And thy victorious band Of heroes tried and true, A nation’s thanks are due; Defenders of an injured land —  Well hast thou taught the dastard foe That British honor never yields To democratic influence low The glory of a thousand fields. — Duro Melsetter (1838)1

O

n news of the Navy Island invasion, Lieutenant-Governor Head dispatched Allan Napier MacNab to command a militia tasked with confronting the insurgents. By then a member of the Upper Canada elite, the thirty-eight-year-old MacNab had fought along the frontier during the War of 1812, and then practised law in Hamilton, becoming an important business figure in the region by the late 1820s. Though an outsider among — and an economic competitor to — ​ the Tory Family Compact that controlled the province, he preferred these Tories to Mackenzie’s reformers. Indeed, both before and after his election to the assembly as a Tory in 1830, MacNab clashed repeatedly with Mackenzie, and led efforts to expel the reformer from the assembly. He also opposed responsible government in Canada, fearing it would degrade ties to Britain. Still, MacNab was more independently minded than most of his party, a status that led to his election as speaker of the assembly in 1837. He had also maintained ties to the militia, reaching the rank of lieutenant colonel in the Gore militia by 1830. And so, when Mackenzie 23

Destroying the Caroline

led his rebellion in December 1837, MacNab mustered a small force in Hamilton and steamed to Toronto. There, MacNab marched north to Montgomery’s Tavern on 7 December, in command of the “principal body” of men who dispersed the rebels assembled at that site. Lieutenant-Governor Head then sent the colonel and his militia to southern Ontario to chase Mackenzie’s confederate, Charles Duncombe, and the dissolving band of insurgents under his command.2 MacNab’s operation was chaotic and beset with logistical problems, and Duncombe ultimately escaped the country. This might reasonably have raised doubts about MacNab’s military acumen — and certainly the colonel did not enjoy the respect of the regular officers on Lieutenant-Governor Head’s staff. Nevertheless, MacNab was well liked by his men — and continued to enjoy Head’s confidence.3 Responding to Mackenzie’s occupation of Navy Island, MacNab arrived at Chippawa soon after.4 Head would later assert that MacNab’s orders were to “act on the defensive only, and to be careful not to do any act which the American Government could justly complain of as a breach of neutrality.”5 But the lieutenant-governor did expressly authorize MacNab to “recover possession for Her Majesty of Navy Island.” To do so, the militia commander could enlist halfpay Royal Navy officers “of experience.”6 These naval veterans were plentiful in the region. In the downsized navy of the post-Napoleonic period, many officers were effectively laid off, kept on halfpay as a form of standing retainer should their services be called upon again. Reduced to this precarious existence, many had left for the colonies, and some had joined an organized immigration to Upper Canada, actively encouraged by the colony’s administration to build up a governing class and counter democratic impulses in the region.7 And so, to bolster his assembly of volunteers and militia, MacNab requisitioned the willing assistance of several of these semi-​retired military men. Key among them was Commander Andrew Drew. Also of importance was the Canadian-born Lieutenant John Elmsley. Both men would play an important role in the events that followed. 24

Chapter 4: The Canadian Militia

Like MacNab, Elmsley was a member of the Upper Canada elite, but with iconoclastic tendencies. Born at York (Toronto) and son of a former chief justice of Upper Canada, the thirty-six-year-old Elmsley had spent his childhood in England, entering the Royal Navy in 1815 and serving nine years. Discontented with the military — “the sole object” of which was “the destruction of the Human Species” — he retired to half-pay and eventually returned to Upper Canada in 1825, easily fitting into its governing class and engaging in various business ventures. But although a member of the colony’s Executive Council in 1831, Elmsley's impulses were more reformist than many of his class. Moreover, in a considerable break with the Anglican establishment and the prejudices of the day, he converted to Catholicism and ultimately became a key figure in the Upper Canada Catholic community. But whatever his differences with the Family Compact, Elmsley had no tolerance for rebellion. Despite his earlier disdain of military life, he volunteered at the outset of the 1837 rebellion,8 and arrived at Chippawa on 28 December.9 Andrew Drew, for his part, was a much more experienced military figure whose career was the stuff of CS Forester’s Horatio Hornblower.10 He was born in 1792 in England. His father was John Drew, a tradesman operating barges and warehouses along the Thames River. The family lacked the influence necessary to secure a naval commission for him; however, his father’s role among the “River Fencibles” — a defensive militia — meant he was likely able to promote his son with a family friend, John Phillimore.11 Phillimore was a colourful naval figure in his own right and would become Drew’s commander and patron for much of the younger man’s early career. Later in life, Drew described the notoriously irascible Phillimore as a “cheerful companion and consistent friend” and as “a very pleasant officer to sail under, but less agreeable to those under whom he served, being naturally impatient of control.”12 While it is not possible to say for certain, this family connection may have mattered in other ways. As discussed in Part IV, other members of the Phillimore family would ultimately take an interest in Drew’s conduct along the Niagara frontier, with lasting consequences. 25

Destroying the Caroline

Drew entered service in the Royal Navy as a First-Class Volunteer, aged fourteen, in 1806, midway through the Napoleonic Wars in Europe. Fifteen months later, Drew was aboard Phillimore’s brig, the Bellette, during a conflict with Denmark that figures later on in this book.13 During the land campaign in that war, the Bellette’s crew, with a young Drew acting as Phillimore’s aide-de-camp, participated in Sir Arthur Wellesley’s capture of Kioge (and its supply of munitions). Wellesley — soon to be Duke of Wellington — presented Phillimore with two small battery fieldpieces, and hosted the captain and Drew at a dinner that Drew would recall fondly almost a half-century later.14 Phillimore’s relationship with the commanding admiral, James Gambier, was more fractious — Drew reported later that getting “into hot water” with his superiors “was not an uncommon occurrence” for the temperamental captain.15 Whatever the source of the spate, it provoked Gambier to dispatch the Bellette on a reconnaissance of the well-defended Copenhagen harbour. Phillimore engaged the formidable shore fortification, attracting the attention of fifteen Danish gun-vessels that approached with presumptive orders to capture the British vessel. Fending off the initial assault with broadsides, but now becalmed in still air, the Bellette was at peril from Danish shelling by both gunboats and shore batteries. The alarmed Admiral Gambier dispatched the British fleet’s small boats to tow the Bellette to safety.16 The entire episode seems to modern eyes unnecessarily rash, but it earned the admiration of the fleet and restored Phillimore in Gambier’s eyes. In recognition of Phillimore’s action, the admiral accorded the Bellette the honour of ferrying news of the ultimate British victory to England (a courtesy that secured Phillimore’s promotion to post captain).17 Then, as a midshipman in February 1814, Drew was again with Phillimore aboard the recently commissioned Eurotas in a significant engagement with one of the finest French frigates of the era — La Clorinde. Raking the larger ship with broadside and sending it fleeing, the damaged British vessel suffered twenty casualties to the French 120, and acquitted itself in a manner attracting the felicitations of the commanding admiral.18 26

Chapter 4: The Canadian Militia

Drew’s participation in this engagement prompted his promotion to lieutenant — a “hero promotion.”19 This battle would also generate a dispute in English courts years later, when a leading naval historian described it in less favourable terms than Phillimore thought warranted. Phillimore, accompanied by Drew, visited the author in April 1824 and in the ensuing altercation, the hot-headed captain gave the historian “a thorough licking” with a staff, purchased precisely for this purpose.20 The resulting prosecution — one that the aggrieved historian was himself obliged to finance — was settled with a guilty plea from the two officers, and payment of the costs of the case.21 Temporary invalided out from the Navy in 1815, Drew next served — ​now as the senior lieutenant to Phillimore — aboard the frigate Thetis as it sailed on a fact-finding mission to Mexico in 1823 and then was assigned to duty off the coast of West Africa in 1824.22 Thetis sailed with soldiers and supplies for Cape Coast Castle, a former slaving fortification captured by the British in the seventeenth century and used as the British seat of administration for the Gold Coast, today’s Ghana. Upon arrival, the navy vessel discovered the town besieged by the Ashanti during the first Anglo-Ashanti war, and in considerable peril after the massive Ashanti victory at the Battle of Bonsaso. With Thetis positioned offshore to cover the approaches to the castle, Phillimore dispatched Lieutenant Drew with nearly 130 marines and seamen to relieve the castle garrison. Skirmishes between the British and their allies and the Ashanti besiegers lasted for another week, culminating in a general attack on the British positions. That assault was repelled, with (according to near-contemporary reports) 103 British casualties and 2,000 Ashanti losses.23 In his dispatch to the Admiralty, Phillimore commended “to their Lordships, in the strongest terms the conduct of Lieutenant Drew (who has served with me for a great number of years) . . . [A]s on every other occasion, it is impossible for me to speak too highly of the estimation in which I hold his abilities and zeal.”24 In recognition of his contribution in the affair, Drew was promoted to commander — his second hero promotion — in October 1824.25 However, his career then stalled, as he was reduced to half-pay status. This was 27

Destroying the Caroline

not a black mark on his credentials, but more the reality of the times: at the date of Drew’s promotion, only eight percent of the commanders in the Royal Navy were employed in service.26 His prospects dimmed, Drew cast about for alternatives, settling (unenthusiastically) on immigration to Canada. In his own words, by 1832, Drew was a Commander on half-pay of eight years’ standing, during the whole of which time I had been trying for employment; but from the want of interest I found I had no chance, so I gave it up, and in the spring of that year set sail for Canada with my wife [Mary Henderson, m. 17 March 1832], intending to make that country our permanent home.27

Drew entered an ultimately contentious business partnership with Vice-Admiral Henry Vansittart, still in England, for the development of a farming estate in Upper Canada. Co-founding Woodstock (in today’s Ontario, near Hamilton), Drew used a loan from Vansittart to acquire 700 acres of land and to help finance (and direct the construction of) St Paul’s Anglican Church in 1834.28 He also served as “a magistrate, chairman of a committee to secure and build a court house, local agent for the Bank of Upper Canada and generally one of the leading citizens in the district.”29 Drew’s falling-out with his business partner (and superior) Vansittart came later in 1834. In ill health, and having lost his wife in his journey from England, the vice-admiral was dissatisfied with Drew’s investments and the diligence with which he pursued Vansittart’s interests.30 The resulting legal dispute would hang over Drew’s head for years, and may have affected his career into the 1840s, a matter discussed later. But in the meantime, Drew and his growing family seemed content with their circumstances. He cleared 350 acres of land for cultivation and built a barn, stables, and a home: an attractive stuccoed, Regency-style cottage with an arched front entranceway, flanked on each side by floor-to-ceiling sash windows, and fronted by a deep porch and a large paned dormer-style second floor window.31 Set on a hill to the northeast of the new village, Drew followed the 28

Chapter 4: The Canadian Militia

pattern of military veterans favouring “the romantic and picturesque approach. The style demanded a dramatic setting, either on a hill or in a scenic glade near a stream.”32 The homestead — dubbed “Rathbourne” — was visited soon after by the later-Duke of Northumberland, who reportedly described the Drew estate as “the prettiest place he had seen in the colony.”33 By 1837, Drew was described as “elderly, shortish, and stout”34  — ​ perhaps an unfair portrayal of a man still in his mid-forties. And the half-pay naval officer looked upon his new home “with as much satisfaction as if it had been in England; — in fact, so satisfied was [he] with it, that [he] made up [his] mind to spend there the remainder of [his] days.”35 In fact, however, Drew’s tenure in Woodstock was short, interrupted by Mackenzie’s December 1837 rebellion. In the early weeks of December 1837, Drew seems to have served as a justice of the peace, swearing affidavits for those who had witnessed (or participated in) Charles Duncombe’s wing of the insurgency,36 perhaps including some who were jailed temporarily in the same St Paul’s Church that Drew had helped build.37 But Drew’s role soon became more martial — “I felt I could do no less than volunteer to come forward and assist to put down the rebellion; and accordingly, about the middle of December, I shouldered a musket and started off to join Sir Allan Macnab.”38 Accompanying MacNab in chasing the disintegrating rebellion around presentday southern Ontario, Drew was present as the militia marshalled at Chippawa to contest the occupation of Navy Island.39 MacNab appointed Drew commander of a naval brigade of three lake schooners that the Royal Navy officer was told to assemble and arm in preparation for an assault on Navy Island.40 This was a wise choice. Drew was popular with his men,41 and whatever his various business disputes, he appears to have been respected by his contemporaries, including by powerful patrons in the colony’s leadership. His chief biographer reports that “almost everyone [Drew] met in Canada . . . liked him and were impressed by his ability and energy.”42 29

Destroying the Caroline

Figure 4.1.  Commander Andrew Drew.

LIBRARY AND ARCHIVES CANADA/DREW PORTRAIT COLLECTION/c025729k

Note the image in the background, recording in art the probably exaggerated story of the Caroline tumbling over Niagara Falls, intact and aflame.

30

Chapter 5

The Caroline From yonder murky shore What demon vessel glides, Stemming the unstemm’d tides? — Where madd’ning breakers roar In hostile surges round her path, Or hiss recoiling from her prow, That reeling staggers to their wrath, While distant shores return the glow That brightens from her burning frame, And all above — around — below —  Is wrapt in ruddy flame! — Duro Melsetter (1838)1

O

nce fully massed, the Canadian militia forces at Chippawa would commence a cannonade of Navy Island, with virtually no effect.2 But even before that, the situation appears to have arrived at a stalemate by 29 December. This impasse probably favoured the Canadians. An outright assault on the invaders entrenched on the island could prove costly and was logistically challenging because of the current in the river.3 As noted, the insurgents themselves faced the same serious tactical challenges. And even if they came ashore successfully on the Canadian side, they would be left to mount an invasion in mid-​ winter, during an era when winters in southern Ontario were truly cold. Moreover, the insurgents were an unruly, impatient lot, and their commander, Van Rensselaer, a notorious drunkard.4 Waiting out the invaders — and prevailing on the American authorities to enforce US neutrality law — was probably the best option.5

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Destroying the Caroline

But on 29 December, events unfolded quickly, in a manner that would spark a response from the militia at Chippawa. That morning, Buffalo was beset with rumours that the British had landed on Grand Island, New York.6 These tales were untrue, but the Canadians were investigating Navy Island’s defences: Lieutenant Elmsley — part of Drew’s naval brigade — commanded a British gig reconnoitering Navy Island. During this reconnaissance, his vessel was fired upon from the island7 and from the American side, near the modest (but soon to be famous) landing at Schlosser.8 The United States would later contest allegations that gunfire had originated from Schlosser.9 But Canadian officers on the Canadian side of the river also reported being fired upon by other assailants located on Grand Island.10 Later American investigations confirmed this latter event11 — although that same investigation reported “nothing very serious happened” as a result of this shooting.12 (A conclusion affirmed by the width of the river at this location — a distance that exceeded plausible small-arms range.)13 More consequentially, later on 29 December, MacNab and Drew sighted a steamboat travelling from Schlosser, on the New York side of the river, to Navy Island “full of men, and with one or two fieldpieces on the decks.”14 That vessel was the Caroline, a forty-five-ton steamboat, seventy-one feet in length and twenty feet in breadth, built of live oak in 1824 and owned by William Wells of Buffalo.15 Figure 5.1. The Caroline.

NIAGARA FALLS (ONTARIO) PUBLIC LIBRARY / 100958

32

Chapter 5: The Caroline

Exactly what the Caroline was doing just upriver from Niagara Falls in mid-winter later became a point of contention between American and British authorities. The Americans initially asserted that the boat was doing no more than innocently ferrying passengers from American locations during regular trade. This was a transparently improbable claim. The Caroline was laboriously freed from the ice at its Buffalo winter lay-up at an unusual time for commercial navigation — ​the season on the nearby Erie Canal had closed on 9 December 1837.16 Even less persuasively, US authorities would later assert that the boat was simply carrying tourists, eager to witness the excitement on the Niagara River.17 The British foreign secretary, Henry John Temple, the third Viscount Palmerston, would later deride American explanations for the Caroline’s journey, observing that the American account omitted to explain whence and how arose that sudden outburst of traffic on the river between Buffalo and Schlosser, which, in the depth of a North American winter, could render it a profitable undertaking to set on the ‘Caroline’ as a passage vessel between those two points, between which there is an established railway communication.18

And indeed, the Americans themselves probably did not believe their explanations. The day before the Caroline’s appearance at Navy Island, the federal marshal in Buffalo reported to the US president that “persons here in [Buffalo] are engaged in dislodging one or more steam-boats from the ice, and, as is supposed, with a view to aid the patriot expedition.”19 In any event, the American claims were later countered by considerable eyewitness testimony by Canadian officers and de-mustered members of the insurgency itself that the boat’s presence was for nefarious purposes: ferrying men and weapons to Navy Island. Canadian officers would swear witnessing the Caroline arrive at Schlosser from upriver and then make at least two runs to Navy Island. In these transits, it departed with “a great many men” and returned with many fewer.20 A member of the insurgency later swore that on its second trip, the Caroline ferried “twelve or fourteen recruits and a 33

Destroying the Caroline

quantity of small arms; she also towed over a scow with two pieces of cannon in her,” bringing the total number of artillery pieces on the island to twelve.21 Moreover, given the insignificance of both Schlosser and Navy Island, there was simply no good reason for the presence of a steamer, so many men, and so much material “except for hostile purposes.”22 Indeed, by 1837, Schlosser was no longer a fort per se with a permanent population, but rather a river landing a mile upstream from the old 1763 fort, serviced by a tavern and an inn, and a dilapidated warehouse and a wharf that saw little business.23 Figure 5.2.  View of Schlosser Landing, Niagara.24

The Canadians at Chippawa clearly regarded the Caroline’s presence as a threat. Colonel MacNab complained to US authorities that the Caroline had been “sold to pirates, who have joined the rebels in Navy Island, and loaded with provisions and munitions of war.” These forces, he added, had “the avowed propose of invading and plundering the country, and dividing Her Britannic Majesty’s lands amongst their deluded followers.”25 The Caroline’s presence, the Canadians feared, would shift the strategic balance. MacNab’s aide-de-camp later noted that the strength of the current around Navy Island made access to the island difficult without the aid of a steamer. Up to that point, insurgency confederates on the New York shore at Schlosser had supported Navy Island using smaller rowboats and sailboats.26 The Canadian view was 34

Chapter 5: The Caroline

that “[w]ithout easy communication from the main land to the island, the place could not hold out, and must have fallen without effusion of blood on either side.”27 The presence of the Caroline changed matters. The steamboat’s capacity was such that it might “in a short time have made Navy Island a post which could not have been attacked without great danger and difficulty.”28 As later summarized in diplomatic notes, MacNab and his officers judged that the capture and destruction of that vessel would prevent supplies and reinforcements from passing to the Island, and would moreover deprive the force in the Island of the means of passing over to British territory on the mainland. They therefore determined at once to capture the ‘Caroline,’ both for the purpose of impeding the further progress of the invaders, and to hasten their retreat. . . . [E]very hour’s delay would have defeated their purpose.29

Canadian worries were credible. Chroniclers of the rebel deliberations later reported that Van Rensselaer and the insurgents on Navy Island had been in search of a steamboat to transport their force across the river.30 Prudence may still have dictated a wait-and-see strategy, given the American provenance of the Caroline and Head’s order cautioning against provoking the Americans. But by this point, the commanders at Chippawa were impatient with the seeming inability or unwillingness of American authorities to intervene and stymie Patriot support for the insurgency. As Commander Drew would later complain, The only reason why the “Caroline” was destroyed, was simply this: — she was engaged in the service of the invaders, without the slightest control or attempt of prevention on the part of the American Government; and as that Government either could not, or would not, prevent her employment, hostile as it was to Her Majesty’s rights and territory, we were not disposed to permit, and would not, her uncontrolled employment in a service in which she 35

Destroying the Caroline

might cause the loss of many lives, and made the retaking of Navy Island a doubtful and difficult matter.31

Drew’s complaint was reasonable. As noted, by this time, the US marshals dispatched to the frontier by the federal government had reported to Washington that civil authorities were incapable of suppressing the widespread American support for the rebels, without military aid. And there was none of that to be had on the American side.32

36

Chapter 6

The Raid A party left the British shore, Led on by gallant Drew, sir, Who set the Yankee boat on fire And beat their pirate crew, sir. The Yankees said they did invent The steamboat first of all, sir, But Britain taught the Yankee boat To navigate the Fall, sir. — Song reportedly sung by Canadian volunteers to memorialize the Caroline1

T

he Canadian response to the Caroline’s arrival was swift.2 Drew’s memoirs describe MacNab turning to his naval commander upon observing the boat’s passage down the Niagara River, and saying (using the naval term for a covert raid designed to seize a vessel from its anchorage): “This won’t do. I say, Drew, do you think you can cut that vessel out?” Drew responded with a spontaneous confirmation that he could do so. He would later wonder at his ready belief that the task would be straightforward. Writing decades after (and at a time when he was anxious his role be more widely acknowledged), he observed, “although I had said hastily there was nothing easier, . . . in reality it was a service of such extreme danger, that it may well be questioned whether anyone could be justified in undertaking it.”3 But MacNab was clearly pleased with his officer’s reply: in response to Drew’s confirmation, MacNab reportedly asserted, “Well, then, go and do it,”4 adding to do so wherever the boat might be found.5 As MacNab later explained:

37

Destroying the Caroline

The substance of [my oral order] was to take and destroy the Caroline, as nearly as I can recollect . . . I had no orders to invade the territory of the United States. In my orders to Captain Drew nothing was said about invading the territory of the United States, but such was their nature that Captain Drew might feel himself justified in destroying the boat where ever he might find her.6

MacNab’s 29 December words seem to have constituted the only official orders given in the sequence of events culminating in the sinking of the Caroline. As it was later described, it was the order that “nearly fired the continent as well as the Caroline.”7 Whatever the claims later made by British authorities,8 destruction, and not capture, of the steamboat appears to have been the core objective. Drew takes credit for that position. In his memoirs, Drew reported [t]here was a little difference of opinion between Sir Allan Macnab and myself as to what we should do with the vessel when we had taken her; he wanted her brought over to Chippawa, but I was altogether against it. I opposed it simply on the ground that if she was in our possession the Americans would never rest until she was given up, but if burnt there was an end of her: our purpose would be answered, and the country saved from a great embarrassment.9

Put another way, the Canadians had military motives to intercede with the Caroline and deny the insurgents use of the vessel. But Drew’s account suggests the decision to destroy the boat was a political one, premised on a belief that sinking the craft would generate less controversy than capturing it. On the afternoon of 29 December, Drew assembled volunteers “able to pull a good oar”10 for a mission whose objective he left unspecified to preserve secrecy, and then waited for nightfall. This delay was tactical — a daylight assault would have been easily spotted, while a nighttime crossing would avoid “as much as possible, loss of life and effusion of blood on either side.”11

38

Chapter 6: The Raid

Drew embarked with seven small boats,12 each with seven or eight men, near midnight. Where they first headed is contested. In subsequent affidavits, Drew reported that he and his men first aimed for Navy Island, discovering only then that the Caroline had berthed on the New York side of the river for the night.13 This may have been a manufactured position, constructed after the raid provoked American outrage. Certainly, it was one that British diplomats would later emphasize.14 But there is little reason to believe Drew thought the boat berthed at Navy Island. Lieutenant Elmsley later claimed that after dark “[he] observed the sparks of fire from the pipe of the boat as she was crossing on the same business,”15 suggesting uncertainty as to the Caroline’s ultimate location. But another officer had seen (and reported seeing to his superiors) the Caroline return to Schlosser from its second run to the island at about 5 p.m., and then “let off her steam,”16 suggesting the boat was done for the day and docked at Schlosser. And in his later memoirs,17 Drew described ordering his men to avoid Navy Island to minimize the risk of detection, and to strike for the opposite shore directly, just upriver of the Caroline’s mooring at Schlosser. On balance, this seems the more plausible rendition of events.18 Still, the members of the little expedition may not have all been of the same mind. Two boats were forced to retreat after rowing too close to Navy Island and encountering musket fire from the insurgents encamped there. Possibly against orders, the occupants of these boats may have planned to verify that the Caroline was not berthed at the island.19 Whatever the case, the rest of the small flotilla headed toward Schlosser. After coming perilously close to losing control in the strong current and being swept over Niagara Falls, five boats with forty-one men20 successfully navigated to the American shore by aiming for lights on the Caroline. Lying low behind an embankment on the United States shore until light from the moon abated, the small flotilla rowed gently toward the steamer, approaching both the aft and bow of the boat. A sentry

39

Destroying the Caroline

Figure 6.1.  Picture of cutting-out of the Caroline.

REPRODUCED IN THE PATRIOT WAR ALONG THE NEW YORK-CANADA BORDER BY SHAUN J MCLAUGHLIN (CHARLESTON, SC: THE HISTORY PRESS, 2012)

Painting by JB Read, 1838, of the attack on the Caroline said to be from Francis Bond Head’s A Narrative (London, 1839).

aboard their target sighted them, but only when Drew’s craft — the first to arrive — was within a boat-length of the ship. In response to the sentry’s challenge and call for a password, Drew admonished the hollering man to be silent, promising that the guard would receive the password once the party was aboard. Canadian witnesses later swore the sentry then fired on the boats21 from midship,22 perhaps in the direction of the Canadian boats approaching the bow. For their part, American witnesses claimed shots came from the approaching boats.23 Either way, the raiders boarded the Caroline. Drew described in his memoirs mounting the steamboat’s side near the starboard aft gangway, brandishing his sword and demanding surrender, apparently before his shipmates had themselves alighted.24 American reports of the boarding described the Canadian party as crying out that it would give no quarter25 — a position subsequently denied vigorously by the Canadian participants and British officials.26

40

Chapter 6: The Raid

What happened next, and the relative bloodthirstiness of the raiders and defenders, would ultimately become a closely contested issue. Lieutenant-Governor Head would subsequently claim that “no wanton injury was committed by the party who gallantly effected” the raid.27 And his successor, Sir George Arthur, stated that “the utmost humanity and forbearance were shewn by the attacking party.”28 Canadian officers who accompanied the raid swore that Drew’s orders were to destroy the vessel and use force only against those resisting.29 Drew himself claimed that “[t]hose who assailed us were of course dealt with according to the usages of war.”30 And Viscount Palmerston would dispute the logic of American claims of British bloodthirst: given the numerical superiority of the raiders and the element of surprise, the American casualties would have been numerous had a massacre indeed been intended.31 The American government, for its part, described the Caroline’s crew and company as “unarmed and defenceless.”32 This position was itself disputed by the British. The British claimed that Drew’s company took with them swords only, and yet were set upon by (and received wounds from) firearms on the Caroline.33 In Palmerston’s words: “the British party used no greater degree of violence than was necessary to carry the vessel. They took with them no fire-arms, and had nothing but cutlasses, and some swords borrowed for the occasion from the cavalry stationed at Chippawa.”34 Palmerston would reason in his communiqués with the US ambassador to Great Britain that firearms were a tactical liability as they would produce casualties among the raiders themselves, fighting in close confines on a dark night35 (a position reaffirmed by Commander Drew).36 The shots reported during the raid, Palmerston reasoned, came from the defenders.37 Still, while several Canadian participants did claim that the party embarked without guns,38 their record on this point is not entirely consistent: it is near certain that the raiders had pistols at least.39 Whatever the case, it is without doubt that what followed on the boat’s boarding was a melee involving cutlasses and firearms. Accounts of this fight are inconsistent. American witnesses claim that

41

Destroying the Caroline

Figure 6.2.  The capture in 1837 of the Caroline from Canadian Rebels in American waters after the failed Upper Canada Rebellion.

CLASSIC IMAGE/ALAMY STOCK PHOTO

This image grossly likely overstates the amount of resistance to the approaching boats before the boarding — and wrongly suggests that Drew’s militia had long-guns.

they abandoned the boat with no resistance,40 and were attacked in a “discharge of pistols and the use of swords.”41 The Canadians describe a more forceful defence.42 In their telling, the handful of surprised defenders was clearly insufficiently intimidated by Drew’s appearance on deck. Several men fled the ship immediately, but others resisted. In the resulting hostilities, Drew survived two encounters with pistol-wielding defenders, wounding both.43 In Drew’s colourful account: I boarded on the starboard gangway, and found five men waiting to receive me; these men did not appear to be armed; and on reach the deck, I said, “Now my lads, I want this vessel — go ashore,” and I swept them off with the broad side of my cutlass; three of them went ashore, but two slunk behind the ladies’ cabin and the 42

Chapter 6: The Raid

bulwark; immediately afterwards, one of them fired a musket in my face; the ball passed close to my nose . . . ; I immediately cut the man down with my cutlass, and I thought I killed him [incorrectly as it turned out] . . . In an instant afterwards, a man attempted to fire a pistol at me, but it flashed in the pan; I cut him over the right arm, and turned him ashore . . .44

Meanwhile, members of trailing boats, led by Lieutenant Elmsley, boarded at the bow.45 Another naval officer (Lieutenant Shephard McCormick) and the men of his craft boarded farther aft. As he did so, he was confronted by three men swinging cutlasses and firing pistols. In the attack, McCormick suffered wounds from musket balls striking his wrist, arm, and chest, and a cutlass slash to his loin. McCormick cut down one of his assailants in return, and believed he had killed the man. 46 Ultimately, the Caroline’s resistance (however vigorous it may have been) was unavailing. Within moments, Drew was joined by his full company and secured the ship. The Canadians described finding the Caroline’s master — Gilman Appleby — and a young boy below deck “in a dreadful state of alarm” and clamouring for mercy. Appleby, in his own account, described a stouter response: he gave alarm on reports of approaching boats and was apprehended (and wounded) in a narrow escape from slaughter.47 Appleby was set ashore and the young boy (Luke Walker) was put on a British boat when he refused to go ashore, along with a second prisoner.48 In Drew’s account, the remaining ship crew and passengers — the ship had a company of ten crew, and twenty-three passengers had bunked for the night — were roused from sleep and forced ashore.49 Drew dispatched Lieutenant Elmsley at the head of a small shore party to defend against counterattack.50 And then, despite a claimed thirty musket shots emanating (possibly as a volley) from the direction of the Schlosser tavern and inn,51 the raiders cut the boat away from its anchorage, and set it alight in four spots. Ablaze after ten minutes, it was cast off into the Niagara River. The Canadian officers 43

Destroying the Caroline

would later state they set the ship adrift to avoid destruction of the landing area at Schlosser.52 Drew and a member of his party were the last off the ship, having reportedly ascertained that the vessel was empty of anyone else.53 By 3 a.m., the company was back at Chippawa, having steered away from gunfire on Navy Island. The Canadian force welcomed the victorious band ashore “with good hearty British cheers”54 — described as “loud and vociferous” by the American authorities.55 The Caroline for its part ended its short career. In Drew’s account,56 it drifted across the river, cleared the rapids upstream from the Canadian side of Niagara Falls, and then plunged over that cataract. Other, more credible accounts suggest the ship broke up before the Falls, with only part of the ship tumbling over the waterfall and other portions lying at the river’s bottom upstream from the Falls, where they were visible for decades.57 Either way, the ship was definitively sunk, with only a few remnants recovered downstream. In the raid, the Canadians suffered a number of wounded, but no deaths, and took two prisoners (released shortly thereafter).58 In his memoirs, Drew estimated casualties on the American side at “not more than two killed and four or five wounded.”59 In his more contemporaneous report to his commanding officer, he estimated that “five or six of the enemy were killed,”60 which was then revised in a later affidavit to a single fatality.61 In fact, American authorities could affirmatively identify only one death — Amos Durfee (Durfie) of Buffalo.62 Who killed Durfee — ​ slain by a musket or pistol shot to the back of the head in some accounts,63 and by musket fire from the approaching British boats in another64 — was a point of doubt. The Americans claimed the Canadians shot the man during the raid. An alleged raider — Alexander McLeod — was later tried (and ultimately acquitted) for murder in a celebrated trial (discussed later in this book) that substantially complicated British and American diplomatic negotiations for years.65 For their part, the Canadians and British asserted that, as the raiders had no firearms, Durfee “probably fell by a shot from his own friends.”66 44

Chapter 6: The Raid

Figure 6.3.  Fictionalized portrayals of the Caroline destruction.

© NATIONAL MARITIME MUSEUM, GREENWICH, LONDON / PW4871

© NATIONAL MARITIME MUSEUM, GREENWICH, LONDON / PAF4870

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Destroying the Caroline

© NATIONAL MARITIME MUSEUM, GREENWICH, LONDON / PW4872

In the end, it is impossible to say what happened. Durfee could have been a victim of friendly fire, since American claims of being unarmed strain credibility given the considerable contrary evidence and wounds taken by the Canadians. On the other hand, the raiders were, in fact, armed with pistols, and in the melee Durfee might have been intentionally or unintentionally shot. (Lieutenant Elmsley’s biographer claims that Elmsley later admitted to the killing, something I have been unable to validate.)67 It is not clear if anyone else died in the fight. The American government would soon complain to the British that “several individuals who were on board the boat [were] still missing, and there [was] strong reason for believing that they were either murdered or found a watery grave in the cataract of the river.”68 But the US federal attorney sent to investigate the matter was unable to establish any names of the alleged casualties, other than Durfee and a second claimed victim — ​the cabin boy, “Little Billy.”69 46

Chapter 6: The Raid

Whether a boy in fact lost his life in the melee is uncertain.70 Some Canadian accounts suggest that the cabin boy was one and the same as the youth taken prisoner in the raid.71 An American affiant, for his part, suggested (but could not verify because he was not present) that a boy locked in a water closet had been heard calling out as the ship was swept downriver.72 And American supporters in the aftermath of the raid spread rumours that Drew had run a boy through — an utterly unsubstantiated event soon immortalized in some of the dreadful doggerel composed in ode to the Caroline.73

47

Chapter 7

Aftermath Blood has been shed; you must go with all speed to the Niagara frontier. — President Van Buren to General Winfield Scott1

M

acNab quickly dispatched a note to Head announcing the successful raid that had prevented an intended invasion of Canada, and lauding Drew and his men for the gallant execution of a dangerous service.2 Head responded with his “unqualified approbation” and thanks to Drew and his company.3 The American response was different. Politically and legally, the repercussions of the raid were more significant than the sinking of a modest-sized steamer and a few American deaths (and likely just one) might suggest. As discussed in subsequent chapters, the raid provoked outrage in the United States and brought relations between the young republic and Britain to near rupture. The immediate implications were more modest. Tactically, the event was a success, although not instantly. The occupation of Navy Island and sporadic hostilities would continue for several weeks. A Canadian witness reported accounts of fifty to 100 men joining the insurgents on Navy Island from New York;4 one insurgent claimed that by mid-January 1838, as many as 1,300 fighters and twenty-six cannons were on or near Navy Island.5

49

Destroying the Caroline

Cannonading of the Canadian shore from Navy Island continued. By the end of January 1838, MacNab reported that three Canadians had lost their lives in the shelling,6 and Lieutenant Elmsley reported being fired upon by American militia on Grand Island while conducting another reconnoiter of Navy Island on 10 January.7 But soon after the Caroline raid, American state and federal authorities renewed efforts to deter further military adventures by US citizens. A New York militia general arrived days after the raid to persuade the insurgents to surrender arms procured from state armories. He sought and received MacNab’s pledge not to invade Navy Island while this effort was underway. This undertaking expired when the exasperated militia officer abandoned his effort to negotiate with the recalcitrant insurgents, saying, “if the poor deluded beings who have encamped on Navy Island are slain, their blood be upon their own head, not mine.”8 The federal government also acted. The US marshal for the Northern District of New York issued a proclamation on 4 January 1838 announcing he would arrest Americans who armed themselves “for war against a nation with whom your country is at peace.”9 And upon news of the Caroline reaching Washington, President Martin Van Buren promptly dispatched General Winfield Scott, announcing, “Blood has been shed; you must go with all speed to the Niagara frontier.”10 Scott was a storied figure in US military circles. A veteran of the War of 1812, Scott had spent two years during that conflict as an officer in the US forces trying, unsuccessfully, to seize the Canadian side of the Niagara frontier. Captured, then paroled after the consequential American loss at Queenston Heights, Scott had acquitted himself better than his peers at that battle and emerged from captivity with an enlarged reputation. Still in his twenties, he was promoted rapidly, and assumed a leading role as a brigadier general in the continuing conflict on the frontier. Indeed, he was credited as the key US commander in the American victory at Chippawa in 1814, on the Canadian mainland across from Navy Island.11 Scott emerged from the war a major general. By the 1830s, he was the leading American military figure of his day, although he was 50

Chapter 7: Aftermath

not without his detractors. An early biographer described Scott’s command at Chippawa as displaying “more bravery than prudence” and suggested the general suffered from a “proneness to intrigue.”12 The major general also earned the moniker “Old Fuss and Feathers” for his snobbish, aristocratic manner.13 Scott initially expressed sympathy for Mackenzie’s 1837 uprising, but adopted a more pragmatic, punctilious view of conduct along the border, along with a healthy contempt for Mackenzie’s American supporters — self-styled “Patriots” — and their destabilizing forays into Canada.14 The balance of power at the border meant that outright war with the British would be perilous, if not suicidal.15 MacNab’s forces on the Canadian side were considerable — estimated by Christmas 1837 to be around 2,500 Canadian militia, at least two companies of British regulars, and Indigenous forces from the Six Nations16 — and the British soon deployed two line regiments from Lower Canada to the frontier.17 In comparison, nine of the United States’ regular thirteen regiments (and all its artillery) were in Florida in a renewed conflict with the Seminoles. The remaining four were on the western frontier. Garrisons in northern frontier forts had been stripped. In 1837, the only federal troops along the northern border were the soldiers in Michigan forts; they numbered less than 200.18 That same deficit of US soldiers meant that Scott’s efforts to pacify his belligerent co-citizens were gravely impaired. Scott was sent to New York without regular forces, forcing him to dragoon army cadets en route to Niagara and elicit support from northern state militias, themselves of doubtful sympathies on the matter of peace with Canada.19 (The secretary of war, JR Poinsett, warned Scott to enlist only those state troops “if possible, exempt from the state of excitement which the late violation of our territory has created.”)20 Scott also possessed limited legal authority — in orders to the general that would have affirmed British doubts about the republic, Poinsett noted the federal government “possesses no legal authority to employ the military force to restrain persons within our jurisdiction, and who ought to be under our control, from violating the laws, by making incursions into the territory of neighbouring and friendly nations, with hostile intent.”21 Scott was reduced, in essence, to suasion. 51

Destroying the Caroline

Equipped with these modest tools, Scott set about asserting his influence — more moral than martial — in quieting the uneasy frontier. And as British Ambassador Henry Stephen Fox in Washington predicted, “if any can enforce order there, he will do so.”22 Scott’s immediate concern was the insurgency on Navy Island. Scott learned of rebel efforts to acquire yet another steamboat, the Barcelona, in Buffalo. The general outbid the insurgents, acquiring the vessel for his own purposes on Lake Erie.23 Meanwhile, MacNab and his militia prepared an invasion of Navy Island — one that the operational plan warned would be difficult, if not impossible, using undisciplined troops assaulting an island protected by artillery and natural defences. MacNab’s plan was to bombard the island to ruin, and then dispatch his forces via Drew’s three schooners to surround and overwhelm the island.24 But MacNab never had to execute this doubtful strategy. On 10 January, a British officer at the head of a regiment of British regulars took command of forces on the Niagara frontier. That same day, an informant — presumably on the American side — reported to the Canadians that Mackenzie and his insurgents were rapidly losing support among the monied class on the American frontier, running short of funds and provisions and facing desertion.25 The commanding British officer, Lieutenant Colonel CH Hughes, deemed an attack on the island inadvisable, and continued shelling the rebels. Soon after, on 14 January, the insurgents occupying Navy Island, suffering in the cold and from the heavy Canadian bombardment (and apparently in full knowledge of a possible Canadian assault), decamped for the US shore.26 This eliminated the need for the Canadians to take back the territory by force. With many of the insurgents now on Grand Island, and Hughes’s forces advancing to the abandoned Navy Island, shots continued to be exchanged. General Scott ordered the rebels to desist and arrived with US troops to arrest the insurgent force, now camped on the American shore some miles from Navy Island.27 These events led to a near calamitous standoff between Scott and the Canadian militia. The Canadians believed the steamboat Barcelona was under the control of the insurgency28 and would be used to invade 52

Chapter 7: Aftermath

western Upper Canada. Drew positioned his ships in American waters to intercept the American steamboat and the Canadians notified Scott of their plan to “arrest” the Barcelona’s “progress.”29 In his responses, Scott denied that the Barcelona had a hostile expedition on board — he would be running Barcelona up Lake Erie to prevent embarkation of any hostile expedition.30 He notified the Canadians of his intent to arrest the insurgency’s leadership, complained about the Canadian vessels in American waters, and warned the Canadians against firing without first being attacked by the insurgents. He would view, he told Drew, “a discharge of shot or shells from or into our waters, from the armed schooners of Her Majesty, as an act seriously compromitting the neutrality of the two nations.”31 Drew, in response, asserted a right to enter US waters. 32 Artillery was marshalled on both sides in a tense standoff as the Barcelona steamed upriver. But presumably finally reacting to the letters from General Scott, Drew countermanded his orders to search the vessel and a new crisis was avoided.33 (Perhaps with this incident in mind, Lieutenant Governor Head later ordered Drew “to avoid every thing that could in the least degree compromise the dignity of Her Majesty’s Government, or give just cause of complaint to the Government of any other country at peace with Great Britain”.)34 MacNab was gone from the frontier during the Barcelona crisis. That absence may be what avoided a war. In a preachy statement that renews doubts about his judgment, MacNab told Scott that the naval captains had the right to intercept the Barcelona — and would have, if not for a “serious misapprehension” of their orders. MacNab also renewed complaints about the depredations of the insurgency the US authorities had failed to stop.35 This missive — and the earlier notes from Drew — irritated Scott.36 He had no time to debate MacNab’s “peculiar views of international law.” As for Drew, the naval commander “had been pleased to mistake my point” about a potential armed clash and instead chose to debate whether ships of both nations could navigate the width of the Niagara.37 The insurgents detained by US troops at Grand Island were taken to Buffalo, where some purloined US weapons were recovered.38 But 53

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the insurgents themselves were shortly on their way, and many of these men regrouped.39 As the Upper Canada House of Assembly would soon complain: The military force placed on the American frontier to prevent the invaders from the entering into the provinces was wholly inadequate and incompetent to the performance of that duty and does not appear to have been even of sufficient strength to guard the arsenals containing the arms of the government, which were in many instances seized and carried off by the brigands, to be used against the people of this country.40

The Canadian protest was warranted. Insurgents supported by American “Patriots” formed into “Hunters’ Lodges” and skirmished with British troops and militia in Canadian territory at Fighting Island south of Detroit and Hickory Island near Gananoque in the Saint Lawrence River in February 1838. The insurgents also mounted an attempted invasion of Lower Canada from Vermont, having again purloined weapons from New York State arsenals.41 Further insurgent attacks on Canada were directed at Pelee Island in Lake Erie in March 1838 and Short Hills on the Niagara Peninsula in June 1838. There were also small battles at Prescott, Upper Canada, on the Saint Lawrence River in November and a month later in the Windsor area — there the insurgents burned the Canadian steamer Thames, reportedly crying “Remember the Caroline” as they did so.42 This was the second steamboat destroyed by insurgents in revenge for the Caroline. The first, the Sir Robert Peel, had been seized on the Saint Lawrence River and set alight near Wellesley Island, New York, in May 1838.43 However, the British repulsed the attacks,44 and at Point Pelee captured Thomas Jefferson Sutherland, one of the instigators of the Navy Island occupation. The last significant armed clashes of the 1837 rebellion and its aftermath were over. Other incidents would roil the frontiers between the United States and other British possessions in North America. Most notoriously, a boundary dispute in the Aroostook Valley at the Madawaska settlement on the Maine-New Brunswick border provoked the marshalling 54

Chapter 7: Aftermath

of troops on both sides. (In 1839, the ubiquitous Winfield Scott negotiated a temporary truce with the British lieutenant-governor in New Brunswick that endured until the final settlement of the matter in 1842.)45 And Americans hostile to British administration in Canada continued to operate in border states. The British ambassador in Washington complained during the midst of the 1841 Alexander McLeod controversy, discussed later, that lawless and piratical societies, called Hunters’ Lodges, formed for the express purpose of rapine, violence, and murder, against Her Majesty’s Canadian subjects, are still, although working secretly, in full force and organization throughout those parts of the United States which border upon Canada.46

But the truly consequential remnant of the Caroline affair was not further violence on the frontier, but instead a diplomatic dispute that would come perilously close to igniting a broader war between Britain and the United States.

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Part II

Debating the Caroline

Oh, vain was the strife of the struggling few With a well-armed murderous band; For the gallant barque, with her blood-drenched crew, Is floating from the strand. And the young boy’s quarter cry it bore To the purple wave, with his own heart’s gore. On, wildly onward, sped the craft. As she swiftly neared the verge; And the demon guards of the black gulf laughed, And chanted a hellish dirge; And the booming waters roared anew A wail for the dead and dying crew. As over the shelving rocks she broke And plunged in her turbulent grave, The slumbering Genius of Freedom woke. Baptized in Niagara’s wave. And sounded her warning tocsin far From Atlantic’s shore to polar star. — “Destruction of the Caroline” 1

Chapter 8

Grievance Men do not huzza, they grit their teeth, and talk of vengeance. — Column in the Buffalo Star Extra1

“T

he exploit of cutting out the ‘Caroline,’” wrote Lieutenant-​ Governor Francis Bond Head to London in early January 1838, “is one which reflects so much credit upon those by whom it was executed, that I shall feel it my duty to bring their gallant conduct under the especial consideration of Her Majesty’s Government.”2 But while heroes in Upper Canada, Commander Drew’s Caroline raiders were villains — even monsters — in American eyes. The American reaction in the northern frontier states was noisy, animated, and alarming. A newly restive northern frontier enormously complicated British-American relations. The two countries teetered on the edge of a broader conflict, with the Caroline as casus belli. Given this reaction, Mackenzie’s son-in-law and first biographer would later excoriate the Canadian commander Allan Napier MacNab’s judgment in launching the raid, calling it an act of “great rashness”: A militia colonel, without the least authority from his superior, orders the invasion of the territory of a nation with whom his government is at peace; and when that nation was using efforts, not very successful it must be confessed, to maintain neutrality in a contest in which they were in no way concerned.3 59

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Still, whatever the animated views along the border, neither government wished a descent into war. Distracted by the foreign policy challenges of a restive Europe and Asia, the British were disinclined to expend blood and treasure on this distant periphery of empire. In the United States, the situation in the fragile new country was tenuous. In 1837, the financial crisis (the Panic of 1837) caused a recession that would last several years.4 President Martin Van Buren’s administration assumed office in March 1837, months into the economic crisis, on a pledge of commercial advancement, diplomacy, and neutrality in the affairs of other nations. Van Buren also believed that states had primacy in the American constitutional firmament, and committed to limited federal government.5 This “states’ rights” philosophy would colour his administration’s approach to events in New York.6 But Van Buren’s vision of federalism was more than constitutional fastidiousness — it also responded to realpolitick. The young republic was a factional entity, sharply divided on questions of central government authority in taxing, spending, and regulation. Differences were difficult to bridge, even in normal times, requiring deal-​making and political pacts that looked more like treaties between European nations than the central administration of a federal state.7 And these were not normal times. With federal military forces committed to the western frontier and a renewed conflict in Florida, the US government’s writ on the northern frontier ran shallow — so shallow that it risked being swept along by the actions of the insurrectionists. Whatever sympathies the United States might have had for Canadian rebels, being dragged into a conflict with Britain — the young republic’s key investor and export market, and a superpower of the day with new, steam-powered means of projecting power — was not a formula for success during a period of deep economic uncertainty.8 These are the reasons that propelled the two powers to a diplomatic, rather than military, clash over the Caroline. After tense moments, the two governments bundled the Caroline into a broader settlement of disagreements in the 1842 Webster-Ashburton Treaty. As a result, the Caroline became a mere footnote in North American history, one of the last military incidents along a border that would become among the most peaceable in the world. 60

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But the matter took five, often-tense years of diplomacy to settle. Along the way, the two governments would articulate views that continue to animate international relations to this day. It is important to trace, therefore, the immediate diplomatic, legal, and political history of the Caroline raid’s aftermath. Within days of the Caroline’s destruction, American newspapers were reporting the raid, describing the loss of life as “wanton” and involving “inhuman murder.”9 Although some newspaper stories were tempered — noting that only Amos Durfee’s killing had been confirmed10 — other reports exaggerated casualties among the Caroline’s company, claiming twenty-two crew killed, with only twelve escaped;11 and crew “who attempted to escape were killed, with a few exceptions.”12 In a proclamation to the New York legislature, the governor of New York asserted that probably “more than one-third” of the thirty-three crew aboard the Caroline had been “wantonly massacred” in a “hostile invasion” for which, even had the steamboat been supporting the occupation of Navy Island, there was no justification.13 (These casualty numbers likely stemmed from the florid account of the raid given to the federal district attorney in Buffalo by Gilman Appleby, the master of the Caroline.)14 The Caroline raid enflamed the New York frontier. As “public meetings were held to denounce what was considered as a wanton outrage[,] the press aided in inflaming the public excitement” and American militia were barely restrained “from going over to Navy Island to join insurgents and sympathizers collected there.”15 The acting mayor of Buffalo proclaimed measures to “prevent any future aggression” in response to the “outrages . . . committed by persons from Canada upon the lives and property of our inhabitants.”16 A militia, estimated at 400, then swelling to as many as 2,000 men under arms, soon marshalled with the intent of marching to “the seat of war to preserve our territory from insult.”17 In Rochester, New York, news of the raid provoked “inexpressible excitement”: the “military assembled — and drums were heard in the streets — the courthouse bell was rung, and our citizens flocked together by hundreds, to deliberate upon the proper course to be 61

Destroying the Caroline

pursued.”18 New York City papers warned that the raid “gives almost a finish to peace and amity. The whole population of Western New York is moving en masse upon Upper Canada, and the avoidance of a war seems to be almost impossible.”19 All this constituted the unrest that General Winfield Scott sought to repress between 1838 and 1839, mostly successfully. In their commentary, newspaper columns varied in tone from hyperbolic, to more carefully critical, to outright cautious. The New York Inquirer screamed, Our shore has been invaded! An American vessel has been attacked, set on fire, and sent over the Falls of Niagara by a foreign force. Unarmed American citizens have been brutally butchered by British soldiery! And their death must be avenged. The Lion of England cannot feast upon the blood of freemen with impunity!20

In a fanciful flourish, the Buffalo Star Extra described people gathering at Schlosser in expectation of battle . . . Curses, not loud, but deep, greet you on every side. Men do not huzza, they grit their teeth, and talk of vengeance. Women, beautiful women, are in the streets, with white handkerchiefs at their swollen eyes, inquiring for their husbands, and brothers, and sons. Men look on, and grasp their rifles more convulsively.21

Not all commentators embraced excess. For instance, a Buffalo Commercial Advertiser assessment marched clinically through the facts, as known, before concluding that the destruction of the Caroline was “a most flagrant, outrageous violation of territory, and the death of Durfee was a murder.”22 Other correspondents in the American press — especially those farther from the border — took an even more cautious tone. For example, a column in the Baltimore Gazette warned against a conflict between the two countries in response to “hotspurs” on both sides, blaming the incident on a failure by the US government to control the insurgents interfering in the affairs of Canada, and on a British 62

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commander who exceeded his remit to cut out the Caroline on the American side of the frontier.23 The New York American condemned the Caroline raiders and called for their punishment, but also feared “the immediate consequences of the excitement which this occurrence, operating upon the already aroused sympathies . . . will occasion along the frontier, and, indeed throughout the country.”24 The column bemoaned that the United States “have been greatly the aggressors in this whole matter,” pointing to the US failure to restrain the insurgents. By late January 1838, papers on both sides of the Atlantic began focusing on issues soon material to the diplomatic discussions to follow. Reports out of New York reached London first. Some London papers were quick to accuse American reporting of “a style of violent bombast.”25 They also argued, not surprisingly, that the equities of the situation favoured the British. Some columns captured what would soon be the British official position admirably: Navy Island is British territory — it has been seized upon by an army . . . This invasion has been made altogether from the New York shore, and in New York vessels, and it has past unmolested under the eyes of the New York government; but this is not all: the invading United States Army for however composed, an army embarking from the ports of any country by licence of its government is to be considered as the army of that country . . . having established itself on the British territory has been regularly and constantly supplied with arms, ammunition, provisions, and reinforcements, from the United States through several successive days . . . without the slightest construction offered on the part of the Republican authorities; And thus established and supported, it has used the advantages of its position to prosecute hostilities still further upon the subjects of Queen Victoria. . . . If the Republican minister demands an account of the seizure of the Caroline, he must accompany his demand by explanation of the seizure and continued occupation of Navy Island by an army fitted out from Buffalo, if he says that his government could not prevent the organization, embarkation, and continued support, of this army through successive weeks, without any provocation 63

Destroying the Caroline

under heaven given to any American, he is to be answered, neither will the British government hold itself accountable for the midnight expedition of two hours, undertaken by 40 or 50 of its subjects, highly exasperated by wanton injury. If the United States government is either unable or unwilling to restrain its subjects from injuring and insulting the subjects of our Queen, it must submit to consequences at the hands of the parties injured.26

As British accounts of the raid reached American correspondents, some commentators expressed more confusion about the precise sequence of events surrounding the raid, and expressed doubt about the legitimacy of the American grievance. The London press happily reported in February 1838 that “[t]he irritation of the American press, with respect to the affair of the Caroline, had materially subsided.”27 The New York Commercial Advertiser pointed to British descriptions of the raid that suggested that the Caroline was not the innocent commercial vessel of earlier accounts, but rather had been hired by Mackenzie. “If this were the case,” it concluded, “she had lost not only her neutral, but also her American character, and those on board of her had no claim to the protection of our Government.” Redress was owed for violating American neutrality, but the United States has “no claim to make, either for the destruction of property or for the killing of those on board.”28 This was a view also advanced by British North American newspapers. The Montreal Transcript forcefully argued that the Caroline was a piratical vessel. If not, then the vessel was American, and “that people had by the manner in which she had been employed, grossly violated their national faith.”29 An editorial in the Halifax Times pointed to Emer de Vattel, the international jurist whose influence is described later, in opining: if the American Government is really desirous of preserving its neutrality — if owing to the deficiency of the power lodged by the Constitution in that Government, it is unable to control the hostile aggression of its citizens — it ought not to deem the affair of the Caroline as any infringement of its neutrality.30

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Chapter 9

Claim An extraordinary outrage committed from Her Britannic Majesty’s Province of Upper Canada on the persons and property of the citizens of the United States. — Secretary of State John Forsyth (5 January 1838)1

I

t was exactly over this question of whether the Caroline or the place it had berthed could be considered “neutral” that US and British diplomats were soon sparring in a battle of letters between 1838 and 1842. This was not an idiosyncratic issue. The rights and duties of neutrals was a chief foreign policy preoccupation of the period. As the term suggests and is discussed later, neutrality required non-belligerent states to support neither side in a conflict. The young American republic enforced this principle through federal Neutrality Acts, initially designed to keep the United States remote from European conflicts by barring Americans from participating in hostilities against belligerents in a foreign war, including (by 1818) civil wars.2 Enforcement of these rules was, however, often beyond the means of the federal government in the decentralized early republic. And now, with events in New York in 1837, foreign rebels supported by American citizens operating from American soil and using American weapons were engaged in hostile activities against a neighbouring power. The obvious question was whether the US government could plausibly overlook its own failure to repress this insurgency, and invoke neutrality to 65

Destroying the Caroline

dispute the legitimacy of the Canadian resort to self-help on 29 December 1837. On this question, the British had few doubts, and many complaints. From the outset of the December 1837 rebellion, Lieutenant-​ Governor Francis Bond Head had been reporting developments in Upper Canada to the British ambassador in Washington, Henry Stephen Fox.3 In those December dispatches, Head declared “unfair and unjust” the renewal along the Niagara River of a suppressed insurgency, thanks to the support of American sympathizers.4 Canada expected to be protected by the British, even though it was considered to be a “remote portion of the British dominions.” Washington should be persuaded to exert “military force to suppress a movement of their people so insulting and injurious to a neighbouring nation,” which, unless checked, would lead to a “national war” in which the wrongs to Canada would be “amply redressed.”5 British officials were generally dissatisfied with the laggardly American response to subsequent events in New York, and believed that the US government had designs on British North America. Fox, for instance, was firmly persuaded that the American government had hoped for success in the 1837 rebellion, and desired the absorption of the Canadas into the United States. And he predicted the Americans would exploit any further unrest in the colonies, something that would precipitate a war that would be “wicked, unjust, and unprovoked on the part of the Americans.”6 He also believed that the public press, “and the Administration papers” in particular, were intentionally sustaining the “excitement” over the Caroline.7 Head, observing from Toronto, had similar suspicions, accusing the US government of being at the bottom of the public unrest, and the administration-friendly papers of being “by far the most violent in their efforts to excite the sympathy of the people with the patriot cause.”8 This view would persist among the British. Head’s successor, Sir George Arthur, wrote in November 1838 that he believed the United States preferred a “nominal peace” to war, but that it was content for its citizens to interfere in Canada, in the hope of forcing Britain’s relinquishment of the colony.9

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Accordingly, even prior to the news of the Caroline reaching Washington on 5 January 1838, US Secretary of State John Forsyth and Fox engaged in “anxious” discussions over the situation on the frontier. These two men would dominate early diplomatic discussion of the Caroline. This was not entirely a happy development. One historian of the period describes these men as “both unequal to the task of resolving such a critical and sensitive disagreement.”10 Fox was a member of a prominent English Whig family, wandering the political desert during the Tory governments of the post-Napoleonic period. He had a lasting gambling habit and a waning fortune. In consequence, his professional life was checkered — he served in diplomatic posts in various Italian states and Paris. In France, he was arrested for his debts, and released only on intercession of the French government. In 1831, the Foreign Office dispatched Fox to the legation in Buenos Aires,11 where he performed satisfactorily. Transferred from there to Brazil, he reportedly made an impression on Viscount Palmerston by describing himself as “climate-proof.” Palmerston, by then foreign secretary in Lord Melbourne’s Whig government, reportedly concluded that Fox’s imperturbability in sultry conditions made him “the man for Washington” — unlikely to return from that posting “every two or three years for his health.” More than that, Fox was in no hurry to return to England and to his gambling debts.12 Palmerston himself noted that, in Europe, Fox’s name had become “a little too much associated with the gambling table, and it would be for his own advantage to give him opportunities of establishing his professional reputation as a diplomatist in a responsible situation elsewhere.”13 Distinguished mostly by his climatic fortitude, Fox arrived in Washington in 1836 as Britain’s first diplomatic representative to the United States during Queen Victoria’s reign. He was, by then “a competent but ordinary diplomat,”14 one with an awkward financial past (and present) and an eventual opium habit.15 In Washington, Fox proved an eccentric figure — popular in at least some social circles for his glamorous parties. He was held in lower esteem by his many financial creditors. (In one apocryphal account, Fox’s creditors

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Destroying the Caroline

surrounded the diplomat’s Washington house and clamoured for satisfaction for his debts. The diplomat promised to do so on “The Day of Judgment.”)16 His predecessor as British ambassador was unsparing in his critique of Fox’s manner: Fox “rises as 6 p.m., games all night — sees no one, [and] pays no debts but game debts.” In a second (somewhat contradictory) criticism, the prior ambassador also complained Fox “shuts himself up, show[s] no disposition to mix with the Americans, or do anything but save money.”17 More materially to the Caroline dispute, Fox also exhibited a healthy disregard for American republicanism and its “imperfect and defective laws,”18 and would limit himself to official missives when personal diplomacy would have been more advantageous.19 Secretary of State John Forsyth, for his part, was a southern lawyer, propelled to federal politics by a northern wife seeking relief in Washington from the even more sweltering and provincial Georgia capital. As a congressman, Forsyth adopted a nationalistic bent, including in matters of controversy involving the British. Forsyth’s political career was interrupted by a brief and awkward spell as American ambassador to Spain — an appointment that included a physical altercation with a Spanish soldier who had jostled the ambassador in the streets of Madrid. For this and reasons related to his relationship with the Spanish government, Forsyth’s Spanish appointment was, in the words of his biographer, “the nadir of his career.”20 To the mutual relief of both the Spanish and the erstwhile ambassador, Forsyth reverted to politics and was re-elected to the House of Representatives and then as a governor of Georgia in 1827. After two years, he returned to Washington as a senator, and then was appointed secretary of state by Andrew Jackson in 1834. In that role, continued under Van Buren, Forsyth was “an able administrator but lacked the sensibilities necessary for complex diplomatic problems.”21 That two such checkered figures represented their countries in their relations was unfortunate, given the complexity of the issues ensnaring the trans-Atlantic relationship. Writing in 1841, the House of Representatives Foreign Affairs Committee listed the grievances complicating the two countries’ affairs: 68

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Neither our Northeastern or Northwestern boundaries are yet settled [with Britain], and the subject is not entirely free from difficulty. She has recently seized our vessels and exercised a power involving the right of search, under the pretext of suppressing the foreign slave trade, which, if preserved will sweep our commerce from the coast of Africa, and which is incompatible with our rights as a maritime power. She has recently, in her intercourse with us, refused indemnity and denied our rights to property, on a subject-matter vital to near one half the States of this Confederacy, and which, considering her military position at Bermuda and her growing power in the West Indies, is of the last importance to other national independence.22

The Caroline raid added to — and indeed, crystallized — the delicate diplomatic situation. In official Washington, Fox told his superiors that news of the Caroline was causing “great uproar,”23 one he expected would be used for political purposes: The affair of the destruction of the piratical steamboat “Caroline” continues to occupy and excite the public mind. The public press, and the Administration newspapers in particular, are using every effort to sustain the excitement. It is clear the United States’ Government intend to make the most of this affair as a set-off against injuries in which the people of Canada have to complain on the part of the Americans.24

The first formal diplomatic salvo in the dispute came quickly. Forsyth wrote to Fox on 5 January 1838, days after the raid, complaining of an “extraordinary outrage committed” from Canada “on the persons and property of the citizens of the United States.” This destruction of property and “assassination” of citizens on the soil of New York was said to have distressed President Van Buren, especially as it came at a time when the president “was anxiously endeavouring to allay the excitement, and earnestly seeking to prevent any unfortunate occurrence on the frontier of Canada.”25 And indeed, Van Buren reported this missive in an 8 January message apprising Congress that militia had been dispatched to 69

Destroying the Caroline

the frontier and reparations sought from the British. In his statement, the president told Congress that the steamboat’s destruction was an “outrage of a most aggravated character,” involving a “hostile though temporary invasion” of US territory.26 Congress was quickly embroiled in heated debate. In the Senate, Senator Henry Clay — a leading political figure — echoed the president’s vocabulary. Though sensitive to analogous US conduct in Florida, discussed later, he declared the raid “an outrage most atrocious in its character and consequences, and totally unjustifiable by anything that could have previously happened.” He too called for an apology and reparations.27 In general, however, the tone in Washington was more measured than the rhetoric at the frontier. Even the suspicious Fox described the US senate as having “shown a friendly and honourable disposition to Great Britain; and I have relied more upon their virtue and wisdom than upon any thing else in the country, for averting the chance of war.”28 Senators inveighed against the raid, but also urged “wise measures and judicious counsels” to maintain friendly relations and denounced a quick rush to judgment.29 In the House of Representatives, some members claimed, optimistically, that war was now unfashionable, and that nations were beginning to resort instead to “noble principles of civil liberty, justice and the advance of civilization.” Conflict between Britain and America would “make war on the spirit of the age.”30 Other congressmen considered it folly to contemplate war between the two states sparked by the “harebrained rashness of a few people scattered along the frontier of Canada.”31 And still other representatives even conceded American culpability: the US government had no force at its disposal; in fact, there was not one regular soldier on the ground, and those officers of the Government to whom it had a right to look for the preservation of our neutrality, had been among the most forward in contributing to the existing state of things on that frontier.32

With an insurgency supported by Americans and supplied from the American shore, and the occupation a “neutral island” in defiance of the British and the law of nations, the British had reason 70

Chapter 9: Claim

to complain of the inefficiency of the US government in preventing these aggressions.33 Congress was also prepared to strengthen America’s neutrality law — the bill would ultimately pass in March 1838, although not without considerable resistance by opponents who viewed it as facilitating the persistence of British power in Canada.34 This law, in force for two years, allowed American authorities to seize vessels and munitions of war about to be employed in hostilities against foreign states with which the United States was at peace.35

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Chapter 10

Impasse The authorities were either unwilling or unable to prevent aggression against Canada. — Sir George Arthur1

A

s Congress debated, John Forsyth and Henry Stephen Fox continued their diplomatic exchanges. In his formal response to Forsyth’s 5 January letter, Fox repeated his characterization of the Caroline’s conduct as “piratical.”2 The British produced an affidavit from an American captured during the raid asserting that the boat was the “property of the patriots on Navy Island,” employed to take provisions and stores to the island. Moreover, the deponent claimed to have heard the ship’s watch admonish the boat’s company to sleep well the night of 29 December, because the next day, they would be tasked with ferrying more men to the island.3 Ambassador Fox also complained pointedly that the United States had failed to enforce its laws along the New York frontier: “At the time when the event happened, the ordinary laws of the United States were not enforced within the frontier district of the State of New York. The authority of the law was overborne, publicly, by piratical violence,” which resulted in injury and threat to Canada.4 Under these circumstances, “Her Majesty’s subjects in Upper Canada” were necessarily impelled “to consult their own security, by pursuing and destroying the vessel of their piratical enemy, wheresoever they 73

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might find her.”5 In private correspondence, Fox was even blunter, accusing the American government of being “criminally supine” and incapable of enforcing its own laws.6 The lawless qualities of the New York frontier would be a recurring theme in British correspondence. Lieutenant-Governor Francis Bond Head put the matter in emphatic terms: An army of American citizens, joined to a very few traitors from Upper Canada, and under the command of a subject of the United States, has been raised and equipped in the State of New York against the laws of the United States and the treaties now subsisting, and are using artillery plundered from the arsenals of the State of New York in carrying on this piratical warfare against a friendly Power . . . The officers and Government of the United States and of the State of New York have attempted to arrest these proceedings, and to control their citizens, but have failed. Although this piratical assemblage [is] thus defying the civil authorities of both countries, Upper Canada alone is the object of their hostilities. The Government of the United States has failed to enforce its authority by any means, civil or military; and the single question, if it be a question, is, whether Upper Canada was bound to refrain from necessary acts of self-defence against a people whom their own Government either could not or would not control.7

His successor, Sir George Arthur, would use a strikingly modern phrase to describe the conduct of the American government on the frontier: “[T]he authorities were either unwilling or unable to prevent aggression against Canada.”8 In Washington, Secretary of State Forsyth protested this British characterization of the situation. Even if the British were right in their characterization of the facts, those furnished “no justification of the aggression committed upon the territory of the United States.” Moreover, claimed Forsyth (incorrectly), the United States had been “prompt and vigorous” and “successful in repressing every attempt of the inhabitants of the frontier states to interfere unlawfully” in the Canadian uprising. But burning the Caroline had damaged these 74

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efforts, as it “had the natural effect of increasing the excitement on the border which this Government was endeavouring to allay.”9 Faced with this response, Fox declined to debate the problem further, asserting he was not the final authority empowered to decide the matter.10 And so unable to settle the dispute directly in Washington, Forsyth wrote in March to the US ambassador to Great Britain, Andrew Stevenson. Stevenson had reported to Forsyth the “good deal of excitement” that the Caroline raid had generated in Britain, along with “some diversity of opinion as to the course which the British Government will take in relation to it.”11 Forsyth’s own missive to Stevenson contained a dramatic — and exaggerated — rendition of events on the frontier: the boarding of the Caroline was an indiscriminate attack with pistols, swords, and cutlasses upon the unarmed crew and inmates of the Caroline, several of whom were slaughtered — that soon after she fell into the hands of the armed force that boarded her, she was set on fire, cut loose from the dock, towed into the current of the river, abandoned, and ultimately, went over Niagara Falls — that one man was left dead on the dock of Schlosser, and others who escaped with life, received serious wounds — that several individuals are still missing, and there is strong reason to believe that they were either murdered on board the boat, or found a watery grave in the cataract of the river . . .12

Forsyth acknowledged that the British account of events differed markedly, and was (in the eyes of the president) credible. But even so, the British aggression was unwarranted, especially given American efforts to suppress unlawful interference in the Canadian rebellion. The British characterization of the Caroline as piratical was “preposterous,” as the concept had no application to the Caroline’s support of the insurgents, however illegal under US and British law: Such voluntary aid from foreigners to persons in rebellion against their own Government is neither treason nor piracy in those affording it; and unless they are taken in arms against the Government, or within its jurisdiction, no punishment can be rightfully inflicted upon them by that Government.13 75

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Forsyth instructed his ambassador to “remonstrate” against British conduct and express the “President’s expectation that such redress as the nature of the case obviously requires, will be promptly given to the United States.”14 In London, Stevenson — himself a Southern states’ rights supporter described by one historian as “quarrelsome and tedious” — ​ doubted the British would offer atonement.15 But acting on his instructions, he condemned the raid and demanded recompense in a lengthy letter to the British foreign secretary, Viscount Palmerston, in May 1838.16 Supplying “the facts, and proofs on our part, and the principles of Public Law, upon which the case must be decided,”17 Stevenson complained of the signal and extraordinary outrage committed by the British troops from the province of upper Canada, upon the persons and property of citizens of the United States, within its limits and jurisdiction, and which, in the view of the president of United States, form the subject of a demand for redress upon Her Majesty’s government.18

The ambassador asserted US neutrality in what he characterized as “civil war” between Great Britain and its Canadian colonies.19 And while American citizens associating with Canadian insurgents could be treated by Britain as enemies “whilst in arms,”20 that did not diminish US sovereignty over its own territory. British claims to lawfulness in the Caroline matter had merit only if it could be demonstrated that “the British Authorities had the right to seek and destroy her by an armed force within the limits and jurisdiction of a Sovereign and Independent State.”21 On this point, the US position was simple: under international law, “[e]very entrance . . . into neutral territory with hostile intention is denounced as unlawful.”22 If those on the Caroline had become belligerents in the conflict across the river, they were punishable while within the territorial limits of the United States under US law alone and not by Great Britain. Only in exceptional circumstances could these principles of territorial sovereignty be disregarded: consent 76

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(in this case, from the United States); an innocent transgression; or “extreme state necessity.”23 In the American view during the Caroline dispute, the necessity which justifies invasion of neutral territory must be imminent and extreme, and involving impending destruction. It is never permitted for purposes of convenience, or ordinary defence, or as a measure of retaliation, however atrocious the injury may have been which it is intended to punish.24

And for the US government, this standard was not met by the 29 Decem­ber raid that had destroyed the Caroline — indeed, “to suppose for a moment that measure was dictated by the extreme necessity of self-preservation . . . would be preposterous.”25 The British foreign secretary made no formal response beyond an official acknowledgement26 for almost three years, much to the later consternation of some British newspapers.27 This silence also ignored the counsel received from Fox. The ambassador had urged his superior to issue a “direct avowal and justification” of the raid, and the circumstances in which it occurred — that is, at a time during which the New York frontier was subjugated to “piratical violence.” This official statement, he believed, would be a “sufficient vindication, before the world, of the honour of the British name; and a sufficient satisfaction exacted for the insults and injuries received from the American population.”28 Fox may have been right — and even if he had been over-optimistic, it is certain that Palmerston’s long silence allowed the matter to fester. The exact reason for this delay is obscure. It is likely that Palmerston saw little advantage in pursuing the matter, expecting the controversy to abate.29 At the time, this may have been a reasonable view. On the American side, Van Buren had no hope of British apology or reparations, and did not wish to risk war with Britain.30 And the notoriously hard-working Palmerston also had many other things to worry about, none of which involved America. The London Examiner later said about the foreign secretary that on “all American subjects, we are apt to associate with his name procrastination at one time and 77

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undue vigour at another.” The foreign secretary was too distracted, it grumbled: “[W]e wish that he would not nail his eyes to one portion of the chess-board . . . We wish, too, that he had recollected that there were rocks to the West as well as to the East.” Those western interests “are at least important, and have been long as critically situated, . . . and have suffered far more by delay.”31 There was truth to this complaint. The famously irascible foreign secretary had been occasionally engaged by American matters — for example, mediating a Franco-American dispute between 1834 and 1836.32 His relationship with Van Buren, when the president had been US ambassador to Britain, had been cordial, and indeed, Van Buren held Palmerston in warm regard. And his prime minister, Lord Melbourne, had asked Palmerston to show “great regard & make great allowance for the situation of the American government.”33 But Palmerston was mostly uninterested in America, a region far removed from priority areas in Europe and the eastern Mediterranean. And he shared his compatriots’ dislike for American republicanism.34 By 1838, the fifty-four-year-old Palmerston was an institution on the British political scene. A parliamentarian and minister of considerable experience, Palmerston was three years into his second (of three) stints as British foreign secretary — in total, Palmerston would hold that office for sixteen years. Preferring to pit rival powers against one another to maximize British range of action, Palmerston wished to deploy British “moral weight” to “extend, as far and as fast as possible, civilization,” including through the use of force if necessary.35 Despite pressure from Lord John Russell, the colonial secretary, to refocus on American affairs, Palmerston was most interested in managing France (still Britain’s chief geopolitical rival), negotiating the perilous diplomacy of a Europe filled with bickering states and statelets, navigating European rivalry in the eastern Mediterranean over the foundering Ottoman Empire, and ultimately prosecuting the first Opium War in China.36 Thus, while famous for his lack of punctuality — including in meetings with foreign dignitaries — Palmerston’s dilatoriness in responding to Stevenson’s letter was a product of over-commitment 78

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Figure 10.1.  Henry John Temple, 3rd Viscount Palmerston (1784–1865).

GL ARCHIVE / ALAMY STOCK PHOTO

and a confidence in the conciliatory impulses of the Van Buren administration, which (given the American unpreparedness for a naval war) he regarded as weak and disinclined to conflict.37 Palmerston may have been fortified in this view by Van Buren’s own conduct. Just as Secretary of State Forsyth was instructing Ambassador Stevenson to press the US complaint in March 1838, Van Buren dispatched his son, John, to meet Palmerston. The younger Van Buren conveyed a presidential letter with a muted tone, one that expressed concerns about the strained bilateral relationship, discontent with 79

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the insurgents who had caused the difficulties, and conviction that the two states could settle their disagreements.38 That confidence would be tested by events to come.

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Revival One thing is very certain, if McLeod is executed there will be immediate war! Of this you may rest assured. — Ambassador Stevenson to President Van Buren (9 February 1841)1

D

uring the three years of Palmerston’s silence, diplomatic discussions on other matters — such as the persistent unrest along the frontier and US efforts to suppress raids by the Patriots — continued.2 And on the frontier citizens held annual “anniversary meetings” to “commemorate and act upon the means of redress for the outrage” of the Caroline’s destruction and to complain about the British failure to respond to Stevenson’s 1838 letter, among other things.3 In Washington, meanwhile, John Forsyth and Henry Stephen Fox did confer on the Caroline issue informally,4 but the governments made no earnest effort to resolve the dispute. Then, on 12 November 1840, Alexander McLeod was arrested, imprisoned, and ultimately tried in New York. The Scottish-born veteran of the British military had participated — reportedly with considerable bravery — in Allan Napier MacNab’s 1837 engagement with William Lyon Mackenzie at Montgomery’s Tavern. He then claimed to have entered the United States and espied (and reported to the British) Mackenzie’s activities in Buffalo and the ultimate cutting-out of the Caroline from the ice at Buffalo.5 Indeed, he claimed to have protested 81

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to Buffalo authorities their failure to forestall Mackenzie’s recruitment efforts,6 and warned the Caroline’s captain, Gilman Appleby, that ships supporting the insurgents risked destruction.7 These activities likely explain much of the animus directed against him in New York. McLeod concluded that his zeal in serving the Canadian cause “procured me enemies among the unprincipled, whose plans I thwarted.”8 What put him in jail were claims by American witnesses that McLeod had been among the Caroline’s raiders, and was Durfee’s killer.9 His peril was a direct result of the post-Caroline raid ferment on the American side of the frontier. As early as 25 January 1838, a New York grand jury had indicted MacNab, and several other alleged participants in the raid for the murder of Durfee at Schlosser on 29 December 1837.10 This indictment was not fully accurate in identifying the raiders,11 and in any event, the accused remained outside of US clutches. But by late 1838, as many as two other Canadian men — and Alexander McLeod himself, on two occasions — had been seized and subjected to judicial proceedings in the United States on (false) claims related to the Caroline affair. New York authorities ultimately released these men.12 But on his third arrest, McLeod would not be so lucky. McLeod, the former deputy sheriff of Niagara District, travelled to the United States on business in November 1840, and, having already successfully disputed the earlier arrests for insufficient evidence, was arrested in New York State on charges of arson, murder, and destruction of the Caroline.13 Alexander McLeod’s precise connection with the events of December 1837 was soon mired in controversy. There is, in fact, no evidence placing McLeod among the raiders, and considerable evidence to the contrary. American witnesses claimed McLeod had boasted of participating in the raid while travelling in the United States, but there is reason to doubt McLeod did even this. On review of the evidence, McLeod’s chief biographer concluded this story was likely malicious gossip echoed by historians ever since.14 But whatever their source, embellished tales of McLeod’s conduct during the Caroline raid in December 1837 resulted in McLeod’s indictment, and a certain exasperation with the man on the part of British authorities.15 82

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McLeod’s jeopardy reignited the diplomatic dispute between Britain and the United States.16 Right away, there were doubts that McLeod had participated at all in the 1837 raid.17 More materially to the diplomatic dispute, the British government insisted McLeod was “accused of no crime but what is deduced from the defence of Her Majesty’s Crown and authority against American brigands and Canadian refugee traitors, who were in the open prosecution of hostilities against this province.”18 That is, had McLeod participated in the raid, his conduct was an act of state done in an official capacity and therefore was conduct immune from scrutiny in the courts of another country. McLeod’s arrest was, therefore, a violation of international law. In January 1841, a clearly incensed Palmerston instructed Ambassador Fox to prevail on the US federal government and secure McLeod’s immediate release. The foreign secretary instructed his ambassador to remind the Americans that the attack upon the ‘Caroline’ was a public act of persons in Her Majesty’s service, obeying the order of this superior authorities [sic]; and that, according to the established usages of civilized nations, that proceeding could only be the subject of discussion between the two Governments, and could not be made the ground in any proceedings in the United States against individuals who . . . were acting in obedience to the authorities appointed by their own Government.19

This view was supported by Britain’s chief law officers. Summarizing the issues more than a decade after McLeod’s arrest, they opined: The principle of International Law that an individual doing a hostile act authorized or ratified by the Government of which he is a Member . . . cannot be held individually answerable as a private trespasser or malefactor, but that the Act becomes one for which the State to which he belongs is in such case alone responsible, is a principle too well established to be now controverted . . .20

Fox was pressing this point with his American interlocutors even prior to Palmerston’s dispatch. In a December 1840 note to Forsyth, he protested sharply McLeod’s “tedious and vexatious examination,” committal to trial, and imprisonment. McLeod was not, argued the 83

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ambassador, among the raiding party that had destroyed the (“piratical Steam Boat”) Caroline. He was being tarred by “perjured testimony of certain Canadian outlaws, and their abettors, who unfortunately for the peace of that neighbourhood are still permitted by the Authorities of the State of New York to infest the Canadian Frontier.” Fox urged McLeod’s release and asked the US government to take “such steps as may be required for preventing others of Her Majesty’s subjects from being persecuted or molested in the United States in a similar manner in the future.”21 In his response, Forsyth reported it was “with unfeigned regret that the President finds himself unable to recognize the validity of a demand” so essential to peaceful relations between the two governments. The secretary of state asserted that the federal government had no jurisdiction to interfere in a state criminal proceeding. More than that, Forsyth again condemned the Caroline raid, and denied that its perpetrators enjoyed any immunity for such an illegal act, even if conducted under superior orders. And furthermore, complained the secretary of state, his government had received no formal response from the British asserting that the raid was a public act. This silence left the US government “uninformed” of the British “views and intentions.”22 This last complaint referred to Palmerston’s silence in response to the 1838 note directed at him by US Ambassador Andrew Stevenson. This silence would become a recurring theme in bilateral exchanges. Still, the American complaint was disingenuous — Stevenson’s claim for compensation was predicated on an assumption the raid was official British conduct. Forsyth may instead have used Palmerston’s dilatoriness to justify inaction in the McLeod matter.23 Fox responded to Forsyth’s letter with “vast regret and surprise” that the Americans persisted in their “erroneous impressions of the character” of the Caroline raid: “the act was one in the strictest sense of self-defence, rendered absolutely necessary, by the circumstances of the occasion, for the safety and protection of Her Majesty’s subjects, and justified by the same motives and principles which upon similar and well known occasions governed the conduct of illustrious officers of the United States” (an obvious allusion to the Seminole War of 84

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1818, discussed in subsequent chapters). Fox warned of “very grave and serious consequences” should further harm befall McLeod.24 This missive provoked one further, unproductive note from Forsyth, suggesting that Fox was not in proper command of the facts.25 These exchanges underscored the inability of these two diplomats to resolve their governments’ differences, as each remained fixated on their own version of events and laboured under shared mistrust.26 The three themes in this initial exchange — a yawning gulf between the parties on the merits of the Caroline raid, doubts about the competency of the US federal executive in intervening in the McLeod case, and the risk of outright war — would dominate diplomatic discussions for years. In relation to the McLeod case, the Van Buren and then the William Henry Harrison and John Tyler administrations persisted in pleading the absence of federal jurisdiction, to the considerable consternation of the British ambassador27 and his superiors in London.28 In his report to Palmerston on his December 1840 exchange with Forsyth, Fox suggested it was “well worthy of the consideration of Her Majesty’s Government, how far the Americans are to be allowed, whenever, it suits them, to plead their peculiar institutions in bar of national responsibility.”29 Weeks later, Fox reported to the Lieutenant-Governor of Upper Canada, George Arthur: The President . . . distinctly refuses to assert an executive interference; and decides, as far as the Federal government is concerned, that the law is to have its course. Now if the law does have its course, and that Mr. McLeod should be condemned and executed, or condemned and pardoned as an act of mercy, it is difficult to see how Great Britain could avoid making such a demand for reparation as must lead to war.30

This threat of conflict came to dominate diplomatic discussions. To Palmerston, Fox predicted that if McLeod were executed, “I do not see what earthly power can save the two nations from war, and from war of the most hateful and terrible kind — a war to avenge the shedding of innocent blood.”31 85

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Fox noted in January 1841 that while the Van Buren administration had clothed itself in “states’ rights,” it earnestly did not seek war with Britain. But the ambassador wondered whether Van Buren might be prepared to “bequeath a war” to the incoming Harrison administration,32 slated to take office that coming March. Domestic political jealously would affect the outcome of the McLeod matter, Fox warned. McLeod’s fate was in the hands of the New York governor, William Henry Seward, a political enemy of Van Buren. Seward was, however, an ally of Harrison, suggesting that the new administration might have more success resolving the issue. This was especially true since Harrison’s secretary of state was expected to be Daniel Webster, a Seward friend. Still, Fox expressed considerable doubt about the reliability of his American interlocutors: [F]ew amongst American statesmen are to be trusted, except under the security of strict official forms; and even those who are the least disposed to push matters to extremity, will nevertheless try to extort as hard a bargain as they can from Great Britain, in the shape of national reparation for the attack upon ‘Caroline,’ if they are able, in the meantime, to hold a British subject in their hands, under sentence of death, as a hostage.33

Other British officials would come to share this disregard for American good faith. The Governor General in Canada, Lord Sydenham, later complained, it is difficult sufficiently to impress upon persons in Europe, the nature of the Government of the United States, or the state of society there, or to satisfy them that they are such as to render the ordinary rules and conduct observed between the civilized Governments of Europe in their international relations, inapplicable to them.

But his subordinate, Lieutenant-Governor Arthur was initially less concerned it would come to war. From his vantage point in Toronto, Arthur predicted that the “popular storm” would settle and that the “more respectable and reflecting part of the community” in the United States would be so opposed to a rupture with Britain that they would interpose themselves to ensure an acquittal.34 86

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And Fox himself was more optimistic by late January 1841, predicting that a clear British response denying the American claims concerning the Caroline would pose no “serious risk” of a “rupture of amicable relations,” and that the United States would submit “at the worst silently and sullenly” to the “just and righteous decision of Her Majesty’s Government.”35 Fox’s optimism was ill-placed. For one thing, Governor Seward in New York firmly supported submitting the McLeod matter to trial — ​ and denied that US or New York law permitted the release of the prisoner in response to British demands.36 For another, Congress was unpersuaded of the merits of the British case. In February 1841, the House Foreign Affairs Committee derided Fox’s designation of the Caroline as a “piratical steamboat.” Such a characterization applied only to conduct on the sea. At worst, the Caroline and her company “were but aiders and abetters of others engaged in rebellion.”37 But even so, the conduct of private actors trading in contraband goods with Canadian rebels on Navy Island (described as “nominal” British territory) was no justification for an invasion of American soil.38 The committee also disputed the British claims in the McLeod case: even if the Caroline raid was an act of state, this did not relieve its perpetrators of criminal culpability in American court, and would not unless there had been a state of war between the two countries.39 At around the same time, events on the ground in New York were conspiring against prompt resolution of the dispute. At Fox’s urging, the British contemplated paying McLeod’s bail and spiriting him back to Canada. Governor General Sydenham found the idea disagreeable, but contemplated it nevertheless, “as it is impossible to act with the Americans as you would do with a civilized people.”40 For his part, Arthur had no qualms about violating American law, but feared jumping bail would simply defer the crisis and the “low, cunning, unprincipled class of men” on the New York frontier would “incarcerate as many Mr McLeods as they calculated upon obtaining ransom for.”41 At any rate, the British had no opportunity to execute this plan. Although a magistrate agreed to release McLeod on bail, a mob 87

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assembled at Lockport jail, harassed and harangued the judge, and declared the bail order “illegal, improper, and inexpedient.”42 In support of this view, they procured one or more cannons which they aimed at McLeod’s cell window and discharged (presumably without shells), to the detriment of the courthouse’s now-shattered glass windows. This exhibition was enough to deter McLeod’s bail sureties, who withdrew their support.43 Shortly after, in February 1841, McLeod was indicted by grand jury and his case was set down for trial.44 Throughout, McLeod remained in prison, by his own account “suffering from fever and ague, and contract[ing] the seeds of a liver complaint” that would continue to ail him.45 This chaotic bail process ignited indignation in British newspapers and renewed protests from Ambassador Fox, compounding a sense of alarm in Washington.46 The British government was in deadly earnest. In February 1841, Palmerston instructed that should Fox’s entreaties with the Americans prove fruitless and McLeod put on trial, “condemned,” and executed, he was to “quit Washington and to return to England; giving notice of your departure, and of the reasons thereof, to the Governor-General of Canada and to the naval officials commanding upon the Halifax and West India stations.”47 In private correspondence, he wrote “if they were to hang McLeod we could not stand it, and war would be the inevitable result.”48 That same month, the British prime minister, Viscount Melbourne, notified Parliament that the government would take measures that in its “estimation would be best calculated to secure the safety of her Majesty’s subjects, and to vindicate the honour of the British nation.”49 This speech reassured the Canadians: They “may rely with confidence upon the entire support and protection of the British Crown,” wrote Governor General Sydenham, “and the renewed assurance which I am authorized to give of the Queen’s determination to protect them with all the weight of Her power.”50 The Americans had a different response. The statements in Parliament, US Ambassador Stevenson wrote to Forsyth from London, “cannot be regarded as either very pacific or conciliatory.”51 Days after, Palmerston summoned the

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ambassador to communicate the British position. The alarmed ambassador reported to Van Buren thereafter that the execution of McLeod would result in “immediate war! Of this you may rest assured.”52

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Renewal Go to war, and the fair fields of the state of New York may be deluged in blood. The state of New York may be ransacked by foreign enemies, and irreparable injury done to its people. — John Quincy Adams (1 September 1841)1

T

he Van Buren administration left office in March 1841, and President William Henry Harrison appointed Daniel Webster as the new secretary of state on 6 March 1841. The New Englander was cut from a different cloth than his predecessor at the state department. By this point, a renowned lawyer — one of the most highly paid in the country — and a politician, Webster was a diplomatic novice. But he had developed firm ideas on international relations. He was hostile to war, considering it an instrument of policy inconsistent with the spirit of the age — as a young lawyer and then congressman, he had opposed the American entry in the War of 1812.2 He preferred conciliation as a means of settling differences, and worried about the economic consequences of war, and especially the danger to the United States’ material progress risked by wars of territorial expansion.3 And the “ardent, indeed rabid” anglophile Webster assumed office with important social and business ties to the British — he had many English friends and correspondents, and had been legal counsel to the House of Barings bank in London.4 Webster assumed office anxious to resolve the McLeod and lingering Caroline disputes, as well as border boundary disagreements 91

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in the northeast, especially between Maine and New Brunswick. As a private citizen, he had watched the deteriorating trans-Atlantic relationship with concern; indeed, he had been in London soon after the Caroline incident, shoring up America’s flagging financial reputation tarnished by the 1837 panic. There, he had also offered cautionary counsel to Ambassador Andrew Stevenson on the Caroline matter.5 Now, as secretary of state, Webster was preoccupied with renewing British investment in the United States, and restoring US economic credibility. By 1842, nine US states responsible for twothirds of American government foreign debt would default on obligations to British creditors, from whom they had borrowed heavily to finance canals, railroads, and other projects. The defaults sparked outrage in Britain.6 Not surprisingly for a former American counsel to the House of Baring, Webster counselled American payment of British debts.7 The US administration worried that state defaults would cause an economic contagion, deterring loans to the US government itself.8 Nevertheless, the shifting politics of the moment would not favour a quick return to harmonious foreign relations with Britain. The “states’ rights” issue persisted in American practice, as did doubts about federal authority to interfere in the judicial process. British officials would complain about the United States’ “peculiar laws and institutions” and reminded administration officials that no country could point to its idiosyncratic rules “in bar of national responsibility.”9 And whatever Harrison’s ties to New York Governor William Henry Seward, the administration’s relations with the New York government were occasionally fractious. Throughout the months to follow, Webster would direct considerable effort at persuading Governor Seward to relent in his hawkish views of the McLeod matter. Seward’s power to direct the dismissal of the case — a nolle prosequi  — ​ or pardon McLeod became a point of contention.10 The new US administration also found itself caught between the peril of British displeasure — and the resulting risk of conflict — and domestic political ruin should they concede too much to the British government.11 Quick conciliation of the British was politically 92

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Figure 12.1.  Daniel Webster, 1897.

DIGITAL COMMONWEALTH, http://ark.digitalcommonwealth.org/ark:/50959/w6634546p

Joseph de Camp and L Prang & Co, “Daniel Webster.” Print. 1897.

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dangerous for the new administration. In Fox’s words, “the new men, the Federalists now returned to power, expose themselves, by yielding to the demand of Great Britain, to a factious opposition, little short of civil war, from the antagonist party of the Democrats.”12 On the other hand, by the spring of 1841, news of the belligerent public mood in Britain had reached Washington.13 To be sure, not everyone in England was strident. In a position that likely irritated Canadian sensibilities, the London Examiner bemoaned the “worthlessness” of the issues at stake between the two countries: the “boundaries of territories already too vast for their inhabitants . . . and whether an act done in 1837 was or was not strictly legal.” Let the matter be settled, the paper urged, managing a snide dig at Britain’s continental rivals: “Austria, or France, or any other military non-​ commercial State, may waste its resources in war or angry diplomacy, but such luxuries do not suit nations of agriculturalists, manufacturers, and merchants.”14 But by March, other London papers were growing more vociferous and animated in their criticism of the United States.15 Ambassador Stevenson in London wrote to the freshly appointed Webster to describe a British press full of “articles of the most revolting extravagance & violence, & well calculated to agitate and influence the public mind, already too much predisposed for violent & rash measures . . . There seems to be a general impression that War is inevitable.”17 Later that month, an English confidant wrote to Webster, warning that on the McLeod matter there was “but one feeling on the subject among all parties and all ranks” in Britain: “that, if he should be condemned, it be such an outrage on international justice, that we must throw away the scabbard at once.”17 Fox, meanwhile, told Palmerston that Americans of all parties, high and low, had, strange as it may seem, deluded themselves into the belief that my demand for the release of McLeod would be not be sustained by Her Majesty’s Government or by the public in England. They are now thoroughly alarmed, I may say terrified, by the turn that affair has taken, and by the excitement which they find has been felt and shown in England.18 94

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European governments viewed the prospect of a British-​American war with anxiety.19 So too did clear-thinking Americans and Britons. Certainly, over a long conflict, both sides knew the United States would prevail20 — the American population and its military capacity had increased since the War of 1812 and the long Canadian frontier was nearly impossible to defend against a sustained, steady American buildup of forces. In 1841, the Duke of Wellington wrote a memorandum on the defensive situation in Canada. Firmly of the view that the United States plotted absorption of Canada, he did not rate the British chances of preventing this prospect highly. Since the War of 1812, “the United States have become not only a great military power with the armies, means and objects of such a one, but likewise a naval power almost second in the world only to Her Majesty.”21 Likewise, a British army memo reviewing the strategic situation in 1840 also painted a gloomy picture of Canada’s prospects in a new war with the Americans.22 British seaborne raiders could inflict damage along the US East Coast, but the British had no illusions of an occupation of these regions, or that the Americans would divert forces from the frontier to garrison the coast.23 And on that frontier, the Americans possessed all the advantages. In North America, warned Wellington, Britain was “in the position of a continental power,” without the luxury of being able to choose whether to deploy its armies in hostilities if attacked. Canada must, therefore, be defended or abandoned, and abandoned “with disgrace and dishonour” if done in the face of an attack.24 The British did consider various (costly) plans for fortifying the frontier — none of which came to pass. In the absence of such fortifications, “the defence of Canada [had to] chiefly rest upon the efficiency of [Britain’s] military and naval force (and [Canada’s] zealous cooperation).”25 Avoiding war required demonstrations of resolve. Governor General Sydenham bemoaned in 1841 that a “more vigourous course” had not been pursued earlier by the British in the McLeod affair.26 And as Fox had earlier argued, the British must be anxious not to cultivate doubt about British fortitude in Canada itself:

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[F]requent injuries and annoyances which the peculiarity of our international position and circumstances enables the Americans to inflict with impunity on the Canadians, can hardly fail to beget an impression in Canada that the mother country is unable properly to protect its distant subjects; and this is exactly the impression which the Americans most wish should prevail in Canada.27

After the destruction of the Caroline, Fox wrote that the only thing likely to forestall the Americans from being drawn into war by the ambitions of the insurgents at the frontier was “fear of the physical force of Great Britain.”28 That same year, Lieutenant-Governor Arthur complained glumly from Toronto that he had done his duty by “declaring, in the most exposed and defenceless frontier of the Empire, that I believe war is inevitable, unless the American Government can be induced by strong remonstrances on the part of England, not only to profess amity but to enforce it.”29 In fact, there were tangible reasons to believe the British could marshal intimidating military force during the Caroline and McLeod crises, at least in the short term. If the advantage lay with the United States in a long war, the British enjoyed considerable strategic benefits that might help them at the outset of any conflict. Through 1838, British naval forces in North America and West Indies swelled from twenty-seven to forty ships, including new steamships, schooners, and gunboats deployed on the Great Lakes (in violation of the Rush-​ Bagot Agreement limiting naval forces on these shared water bodies).30 These numbers had fallen by 1841,31 but in the heat of the McLeod matter, the British renewed naval preparations, including planning for a blockade of the United States.32 In his March 1841 letters to Webster, Stevenson reported British naval movements33 and advised “placing our Country in a state of Defence.”34 (The American naval commander in the Mediterranean was so provoked by Ambassador Stevenson’s missives35 on British preparations that he sailed his three-ship squadron past the British-controlled Strait of Gibraltar into the Atlantic, and returned to the United States with one of his ships, to the considerable disgust of the popular press and his superiors.)36 From Paris, the American 96

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ambassador warned that British warships in the Mediterranean were being marshalled to sail for Halifax, Nova Scotia, and that “fourteen steam frigates would be ready to be upon the coast of the United States, if necessary, in the month of June, and that the first stroke would be at New York.”37 The prospect of steam-powered war created new security dilemmas for the United States. This novel and powerful weapon of war was much more capable of persistent attack on land targets than were ships of sail, and ideal also for towing those heavy-hitting sailing ships into position. British steam-powered warships had just participated in the naval bombardment of the Egyptians at the Syrian fort of St Jean d’Acre, where they “fired shots and shells into the town with much precision.”38 Palmerston, pointing to Acre, reasoned, “Every country that has towns within cannon shot of deep water will remember the operations of the British Fleet on the coast of Syria in . . . 1840, whenever such country has any differences with us.”39 The American ambassador in Paris certainly did: he urged Webster to fortify New York harbour against the new peril. Cognizant also of the Acre battle, the secretary of the navy warned in Washington in 1841: The application of steam power to vessels of war, and the improvements which have recently been made in artillery, are destined to change the whole system of maritime war. Steamboats of light draught, and which may easily be transported across the ocean in vessels of a larger class, may invade us at almost any point of our extended coast, may penetrate the interior through our shallow rivers, and thus expose half our country to hostile attacks. . . . The effect of these incursions would be terrible everywhere, but in the southern part of our country they might, and probably would be disastrous in the extreme. . . . Whilst the combined Powers of our world could not subdue us, even a secondary naval Power could avoid our land defences, set our armies at defiance, and prosecute against us a war intolerably harassing and disastrous.40

Nor could the Americans be expected to match the Royal Navy, either in home waters or, especially, in protecting overseas commerce. 97

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In 1841, the American fighting fleet was modest: eleven ships of the line, only one of which was sizable; seventeen frigates; two brigs; four schooners; and four steamships.41 Other vessels, including two new steamships, were under construction, but whatever the Duke of Wellington’s views, the fleet totals were small when compared to European powers, and especially Britain. Moreover, the fleet was scattered over the oceans. Some of its vessels were in various states of disrepair, and the American frigates were outclassed by England’s modern equivalents.42 In the words of the secretary of the navy, four thousand miles of exposed sea and lake coast, a foreign commerce scattered through the most distant sea, and a domestic trade exposed alike upon the ocean and upon our interior waters, are, in effect, surrendered to the enemy, when they are intrusted to the protection of some twenty ships in commission.43

And Britain was capable of more than projecting seaborne power: the British army had invaded Afghanistan (successfully, for a time) in 1839, and Britain had embarked on the Opium War with China, ultimately acquiring control of Hong Kong.44 These conflicts diverted British resources, but even so, in Canada itself the British had increased their forces following the 1837 rebellions. In 1838 and 1839, as incursions from US-based insurgents continued, the number of British regulars in Canada grew from 3,975 (supplemented with 10,676 militia) to 10,686 (supplemented by 21,162 militia). By 1842, the number of British regular troops reached 12,452.45 The standing American forces, in comparison, were small. The entire US regular army — charged with defending multiple, conflict-prone frontiers — was increased from 8,069 to 12,379 men in 1838. But only 2,000 of these regulars were deployed along the northern border during the period between 1838 and 1842,46 and even these forces were degraded by a high desertion rate and commanded by the relatively few officers who had stuck with service.47 The bulk of the US army was fighting in Florida, and there, in the second Seminole War, it took six years for the army to defeat an uprising of 2,000 fighters.48

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American officials were clearly cognizant that the initial strategic advantage in a war lay with Britain. In Washington, the House Foreign Affairs Committee ended its otherwise stern 1841 report on the Caroline matter with a lengthy recitation of Britain’s strategic advantages: Her internal resources, skill, labor, and machinery, with her capital, are beyond calculation. Her natural position, being about midway the coast of Europe, gives her great control over the outlets and currents of commerce . . . Her positions all over the world are at this moment, in a military point of view, equal to a million of men under arms. Her continual conflicts . . . only enable her officers to become skillful and to improve in the art of war, while her great armies and extensive fleets draw their support from the immense countries seized and occupied. In the present juncture of affairs, no statesman can overlook these things. Steam power has recently brought us so near together, that in the event of any future conflict, war with its effects will be precipitated upon with much more rapidity than formerly.49

The congressmen ended with a plea for restraint: Your committee would conclude by expressing a firm belief that all our points of difficulty may be honorably and amicably adjusted, and that harmony may long be preserved by both Governments pursuing a liberal and generous policy, congenial to the interests and feelings of both people, and compatible with the spirit and genius of an enlightened age.50

Later, in September 1841, New York Governor Seward — in no small part responsible for the impasse over McLeod — expressed alarm at the relative state of readiness on the New York frontier. With large British warships on the Great Lakes and thousands of British regulars in Canada, the governor feared a rout: “Should hostilities break out, our commerce could be swept from the Lakes, and our towns be destroyed before forces could be gathered for their defence.”51

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That same month, John Quincy Adams — the storied former secretary of state and president, and now congressman — would opine on the Caroline and McLeod disputes. In so doing, he issued a colourful warning against conflict with Britain, “the most powerful nation on the face of the earth.” Along the Canadian border, Britain was armed up to the eyes, while we are all but defenceless. She has stationed there in military array an army nearly double in number to the whole army of the United States — an army well appointed and ready to strike at a word. And you have a line of states and a populous border, with nothing but a river between them and that British army, who, at a signal from their commander, could sweep through a thousand miles of your country with fire and sword and desolation, and fall back to their strongholds beyond the river, almost before the knowledge of their incursion could reach this metropolis . . . Go to war, and the fair fields of the state of New York may be deluged in blood. The state of New York may be ransacked by foreign enemies, and irreparable injury done to its people.52

Adams counselled a negotiated outcome in the Caroline and McLeod disputes: “No, sir, never shall my voice be for going to war upon that issue.”53

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Debate It will be for [the British] government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show also that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of United States at all, did nothing unreasonable or excessive. — Daniel Webster (24 April 1841)1

A

nd so, diplomatic discussions continued. Ambassador Henry Stephen Fox in Washington first formally raised the McLeod matter with the new secretary of state, Daniel Webster, in early March 1841, again asserting that even had the Canadian been present at the Caroline raid, it “would be contrary to universal practice of civilized nations to fix individual responsibility upon persons who, with the sanction or by the orders of the constituted authorities of a State, engaged in military or naval enterprises in their country’s cause.”2 The Caroline affair was, from a British perspective, a justifiable employment of force for the purpose of defending the British territory from the unprovoked attack of a band of British rebels and American pirates, who, having been permitted to arm and organize themselves within the territory of the United States, had actually invaded and occupied a portion of the territory of Her Majesty.

As for Alexander McLeod, Fox demanded “formally, in the name of the British Government, the immediate release” of the detained Canadian.3 101

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In response, Webster notified Fox of the new Administration’s intent to dispatch the attorney general to New York.4 Days later, Webster did instruct Attorney General John Jordan Crittenden to depart for New York, with instructions to impress on state authorities that McLeod could not be held personally culpable for acts conducted in an official capacity under instructions from his own government.5 In keeping with the British position, the administration drew a bright distinction between the (in)justice of the Caroline raid, and the separate question of whether McLeod could be tried for it. And even before that, Webster had urged New York authorities to guard McLeod from violent rescue or the real prospect of assassination by the Hunters’ Lodges — the American sympathizers for Mackenzie’s rebellion.6 Events, however, intervened again. New York Governor Seward remained determined to see the McLeod matter put to trial — public opinion in New York would not countenance freeing the Canadian without trial7 — and President Harrison fell ill and died on 4 April. His vice-president, John Tyler, inherited the presidency. Harrison’s death and the Tyler succession, Fox reported, “have necessarily thrown the Government into confusion, and placed all public affairs for the time in a state of abeyance.”8 Fox reported “intelligence . . . of the excitement and indignation [in England] . . . , and of the spirit with which the whole British Nation have taken up the cause of Mr. McLeod, is producing a much better and stronger effect in the United States than can be obtained by official and diplomatic interference.”9 But he warned his superiors in London that Tyler, a Virginia politician, was a “zealous advocate of what are called ‘State Rights,’” and thus might be less inclined to interfere with events in New York than was his predecessor.10 Fox’s forecast was prescient. In the turmoil, Webster made no formal reply to Fox’s March demands until 24 April 1841.11 When he did respond, he professed the inability of the federal executive to order the end of a criminal trial, noting that, as in England, “persons confined under judicial process can be released from that confinement only by judicial process.”12 102

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This position disappointed Fox. While the new administration adopted the British view of the Caroline raid as an act of state, its strategy left to a court resolution of a matter that could precipitate war between the two countries.13 Fox did hold out hope that the federal government had engineered McLeod’s release with New York and its superior court.14 But he warned that this alone would leave unresolved the competing claims over the Caroline. The resulting uncertainty would leave forty to fifty of Her Majesty’s subjects, some of them distinguished commissioned officers, who really were engaged upon that service, . . . liable to indictment for murder, and to imprisonment and trial as felons, if ever they set foot in the United States; and this for an act approved of by their Sovereign, and executed under the order of competent national authorities. As long as such a state of things lasts, the two countries can hardly be said to be at peace.15

It was on the merits of the Caroline raid, specifically, that the governments remained far apart. Looked at from the vantage point of posterity, Webster’s discussion of this matter in his 24 April 1841 reply to Fox became the most resonant correspondence in the entire dispute. It contained the same complaint about Britain’s tardiness: Webster complained to Fox that the United States had yet to receive a formal response from Viscount Palmerston to the original American protest of 1838, lodged by US Ambassador Stevenson in London. This delay, the secretary of state suggested, left the United States unapprised of Britain’s official position. This was a puzzling statement given the record of exchange between the governments since 1838.16 But nevertheless, the lack of a formal reply, suggested Webster, “has naturally produced much exasperation.” More materially for the development of international law, Webster also contested Fox’s justification for the raid. In the most influential diplomatic exchange in the dispute, Webster denied that the raid could be justified by any reasonable application or construction of the right of self-defense under the law of nations. It is admitted that a just 103

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right of self-defense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. But the extent of this right is a question to be judged of by the circumstances of each particular case, and when its alleged exercise has led to the commission of hostile acts within the territory of a power at peace, nothing less than a clear and absolute necessity can afford ground of justification. . . . [I]t will be for her Majesty’s Government to show upon what state of facts, and what rules of national law, the destruction of the “Caroline” is to be defended. It will be for that Government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show also that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.17

Webster described the raid as precipitous. It was done without warning, in the dark of night, and was an attack on (and killing and wounding of) sleeping, unarmed men. The British then destroyed the Caroline, rather than seizing it, in a manner “careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the imagination with horror.”18 The United States, asserted Webster, did not believe that a necessity for all this had existed. The situation darkened further soon after this exchange of letters. In May 1841, McLeod’s lawyers filed a writ of habeas corpus in the New York Supreme Court, seeking the Canadian’s release. But in July 1841, that court refused McLeod’s challenge,19 dismissing the international law objections to the trial court’s jurisdiction that had been advanced by McLeod’s attorneys (and orchestrated by Webster).20 In reasoning that would bind the trial court,21 Judge Cowen, for the New York Supreme Court, concluded that McLeod enjoyed no immunity where the conflict in question was not a “public war” between two states, but rather a “mixed war” against an insurgency: 104

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“The government of the accused may approve, diplomacy may gloze, but a jury can only inquire whether [the accused] was a party to the deed, or to any acts of illegal violence which he knew would probably endanger human life.” This decision contradicted the federal government’s own position on the international law issue — now supportive of the British view that the Caroline was a dispute between governments and its protagonists could not be held culpable in American courts.22 The decision also astonished and infuriated Webster.23 The secretary of state quickly proposed a line of appeal should the trial hew to the New York Supreme Court’s reasoning.24 He also denounced Judge Cowen’s reasoning in correspondence with his friend, US Supreme Court Justice Joseph Story. Story agreed with Webster — the Supreme Court justice found in the decision many “propositions of an exceedingly questionable nature & character” and noted that he had never seen “so much mere statement with so little reasoning.”25 Story declined to write a formal review, but New York superior court judge Daniel Tallmadge did. Tallmadge called the New York Supreme Court decision “unsound in all its parts,” prompting thanks from Webster and congratulations from other notables.26 The New York Supreme Court’s decision distressed the British. Like Webster, Fox too sought a legal assessment of the decision, shared with London. Fox’s lawyer included unsparing criticism of the New York Supreme Court, calling it at its weakest in memory and negligent in leaving the “erratic” Judge Cowen to write the decision of the bench.27 In fact, Fox preferred the prospect of McLeod being “torn to pieces in the street” to being condemned to die “under the pretended solemnity of the law.”28 He complained to London that while the US government had placed on the court record the “principles of international law insisted upon by Great Britain,” it now found itself overruled by an inferior power within one of its own States, and is made liable to be forced into a war with Great Britain in order to support a claim which it has begun by solemnly disavowing. Certainly no nation on earth ever before ran the risk of war with so deplorable a cause.29 105

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Palmerston instructed Fox to express Britain's “great anxiety for an early settlement of the matter” because of the “vast importance of the results which may depend upon the turn which this affair may take.”30 Fox duly reported to Webster the incongruity between the New York court’s finding and the international law principles advanced by the British and accepted by the US government. He underscored the British government’s extreme disappointment, and its “intense anxiety” with the course of events and exhorted the US government “to use its utmost efforts to avert from both Nations the heavy calamity of War.”31 Webster assured Fox that the United States was as anxious as the British to see the matter resolved, and assured the ambassador that the New York court’s decision was not final — the legal matter could be removed to a further appeal court and ultimately the Supreme Court of the United States.32 Fox was suspicious of this lawyerly opining and obtained independent legal advice on the question of whether the trial could be appealed from the New York courts to the Supreme Court of the United States. The answer from the eminent jurist James Kent, among others, was “not easily” — whatever Webster’s assurances were to the contrary. The US jurists also agreed, however, that the case against McLeod should have been stayed by the New York courts once the British had declared the Caroline’s destruction an official act.33 Webster also faced criticism in Congress, as representatives debated the conduct of the administration in the McLeod case. There, the speechifying sometimes turned polemical. Congressman Bowne of New York complained that the “feet of England’s myrmidons polluted our soil” when they attacked without warning “beneath the sable cloud of night” while the Caroline’s company — “citizens engaged in the peaceful pursuit of their lawful employment” — slumbered in “fancied security under the protection of their country’s flag.”34 (The speech continued in an equally extravagant manner, describing the “heavens” as “crimsoned with the reflection of the flames” consuming the Caroline, and “the soil of our country stained with the blood of our fellow-citizens.”) 106

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But not everyone embraced this view. Drawn into the fray against his initial instincts, John Quincy Adams — no friend of Webster — ​ joined the congressmen who questioned the New York court’s holding.35 Not persuaded that the United States was in the right on the Caroline matter, he opposed the condemnation of Webster’s efforts to appease Britain. Instead, he held in high esteem the secretary of state’s efforts to avert conflict with the British; and in a possible reference to Webster’s 24 April correspondence with Fox, Adams declared it one of the best papers that ever was written . . . It has fully authenticated . . . that you will not have a war with England while the present secretary of state is in office. I believe it. I thank God it is so; and . . . the constituents of every member of this house, have great reason to raise their hands in joy and gratitude to the God of Mercy that it is so, and in supplication that it may be so still; for, were it otherwise —.36

However vindicated Webster may have felt by this assessment, it did nothing to resolve his more immediate problems. In New York itself, rumours abounded of new Hunters’ Lodge designs on McLeod — these Patriots hoped that the prisoner’s demise by execution or assassination would ignite a war ending British suzerainty in Canada. In response, New York authorities redoubled efforts to protect McLeod — and state arms depots.37 These steps did not mollify Ambassador Fox, who warned Palmerston that the numbers, means, and organization of the brigands are formidable to an extent that would be quite incomprehensible in any other country in the world; the amount of United States’ regular troops on the frontier is trifling; the militia and armed civil forces could not be relied upon on such an occasion; and my belief is, that if open struggle should take place, the brigands and patriots will overpower the Government forces.38

The reversals in McLeod’s case were now finally enough to prompt Palmerston into more direct involvement. With Prime Minister 107

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Melbourne’s ministry facing a vote of non-confidence following a poor showing in the July 1841 election, Palmerston reported the state of affairs in United States relations to the House of Commons. There he observed that whatever the merits of the Caroline raid (considerable, in Palmerston’s opinion), it was distinct from the question of whether McLeod could be culpable for such an official act of state.39 Then, days later, Palmerston finally replied to the US ambassador’s 1838 complaint about the Caroline raid and the claim for reparations.40 The foreign secretary dismissed Webster’s (disingenuous) claim to ignorance of the formal British position on the legality of the raid. And he was also quick to observe that post-Caroline border conflicts (described in prior chapters) had diminished “the relative importance of the affair.”41 (Indeed, earlier missives to London from Lieutenant-Governor Arthur in Toronto had complained about these continued incursions by the “vagrant population on the frontier,” citing them as evidence of what would have happened in December 1837 had the Caroline not been destroyed.)42 In consequence, Palmerston clearly believed there was little point in focusing on specific incidents without considering the larger complaint. But nevertheless, in his letter to the American ambassador, the foreign secretary laid out the British understanding of the events leading to the Caroline’s destruction. He embraced the conduct of the Canadian militia and asserted the British claim to a right to self-​ defence — one he said had been clearly communicated to the American government by Ambassador Fox soon after the December raid and in informal conversations between the foreign secretary and US ambassador. The British position was straightforward. The British had repeatedly disputed claims of a civil war in Upper Canada. As Lieutenant-​ Governor Head had reported, the province was “more undisturbed” than at any time since the conclusion of the War of 1812.43 This “most perfect tranquility” persisted until 5 December 1837, as the disaffection then roiling francophone Lower Canada had not contaminated the sentiments of Upper Canada’s population of 450,000, “anxious to render every service in their power in support of the Queen’s authority.”44 This serenity was disturbed by Mackenzie’s insurgency, 108

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but order was quickly restored within days, leaving the occupation of Navy Island the sole source of unrest.45 And that occupation was the linchpin. Viscount Palmerston emphasized, the then recent invasion of the British territory at Navy Island, by a band of British refugees and of American citizens, commanded by a citizen of the Union, organized and equipped under the eyes, and there is too much reason to suspect, with the connivance of the authorities, of New York, and provided with cannon and other arms, and warlike stores which were the public property of that State, and were taken openly and without impediment from the storehouses of the State.46

In the result, [e]ither the Government of New York knowingly and intentionally permitted the band of invaders to organize and equip themselves within the State, and to arm themselves for war against British territory, out of the military stores of the States; or else the State Government had lost its authority over the border districts; and those districts were for the moment in open defiance of the power of the State Government, as well as at war with the opposite British province.47

In either case, the United States could not claim the safe harbour of neutrality. The British were well within their rights to pursue the Caroline even within the territorial limits of the United States: [A]lthough Schlosser is unquestionably within the limits of the United States, it had ceased at that time to preserve that neutral and peaceful character which every part of the United States was bound to maintain even if civil war had been raging in Canada . . .48

Palmerston was prepared to concede that “technically” piracy was conduct confined to the high seas. But nevertheless, for the foreign secretary, the nature of the insurgent conduct — if not its precise locale — met the definition of piracy, involving an intent to commit “robbery, arson, and murder” on the territory of Canada.49 109

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But most important for history, Palmerston resolutely backed his ambassador’s earlier claims of self-defence, stating: “Her Majesty’s Government considered the destruction of the ‘Caroline’ as a justifiable act of self-defence, properly done by the local British authorities for the protection of British subjects and their property, and for the security of Her Majesty’s territories.”50 Rather than disavow the conduct of MacNab and his command, the British government entirely approved of their actions.51 US Ambassador Stevenson, in an 1841 counter-response dated days after Palmerston’s letter, observed that the two governments’ understandings of the facts differed appreciably, and denied that a self-defence claim had been formally communicated to his government.52 This ignited one final exchange of letters, with Viscount Palmerston asserting that the United States’ 1838 claims for recompense against Great Britain assumed responsibility by Britain; the United States knew full well that Great Britain considered the raiders’ actions justified. Taken together, these positions relieved McLeod or any other British subject of any possible personal culpability for the raid.53

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Resolution The President is content to receive these acknowledgments and assurances in the conciliatory spirit which marks your Lordship’s letter, and will make this subject, as a complaint of violation of territory, the topic of no further discussion between the two governments. — Daniel Webster to Lord Ashburton (6 August 1842)1

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he Tyler administration now finally replaced Andrew Stevenson as ambassador. Edward Everett — described by his alma mater Harvard as “brilliant and honored”2 — assumed the post. A renowned orator, educator, and politician, Everett was well received by the British. While the location of ongoing negotiations over the irritants between the two states would soon shift to Washington, Everett became an important conduit to the British foreign office.3 The late 1841 changes at the top of the British foreign service were even more dramatic. Viscount Palmerston now departed the scene, as the government of Sir Robert Peel entered office. The new British foreign secretary, George Hamilton-Gordon, the Earl of Aberdeen, differed from his more hawkish predecessor, believing (like Daniel Webster) that bilateral irritants might be resolved by a more accommodating approach. Lord Aberdeen also hoped to deter the United States from alliance with Britain’s perennial rival, France.4 Still, while Aberdeen seemed better disposed to the Americans than had Palmerston,5 he prepared for the worst. He renewed Henry Stephen Fox’s orders to quit Washington should Alexander McLeod be executed.6 And indeed, McLeod’s fate remained a subject of 111

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uncertainty and unease in Washington. Rumours reached Fox that should McLeod be convicted, Governor Seward of New York would suspend the man’s execution to extract concessions from Britain for the destruction of the Caroline.7 In letters to his superiors, Fox expressed suspicion that Webster and President Tyler were not of common mind on the matter. Tyler, he suspected, was moved by his strong “states’ right” impulse.8 Indeed, Fox believed that Tyler would have reversed the US acceptance of the British legal position in the McLeod matter if not bound by positions taken during his predecessor’s administration. Had he a free hand, Fox concluded, Tyler “would have raised subtle points of constitutional and State Rights law, intelligible only to Americans, and calculated to prolong the difficulties of the controversy.”9 But whatever his ideological sympathies, President Tyler was now so anxious about the prospect of war that he proposed extraordinary steps should McLeod be executed. For one thing, he told Fox in private conversation that the United States would “amend our constitution by Act of Congress, so that no such misfortune should happen again; if we neglect to do this, then you may have cause for war, but not before.”10 On this point, Fox was not persuaded, as the war would be with the United States as a nation, and not simply its central government, and the object of that war “would be to strike so terrible an example as should prevent any nation in the world from again committing so monstrous a public crime.”11 Aware of Fox’s orders to decamp and return to Britain should McLeod be executed, President Tyler also suggested that he might bar the British ambassador from leaving, permitting the president time to prevail on the British government.12 This extraordinary idea did nothing to assuage the British. Fox notified British naval commanders that should the ambassador not depart Washington in the event of McLeod’s execution, they were to assume him detained against his will.13 The ambassador later expressed optimism that McLeod would be acquitted, precluding a plan to detain “a foreign Minister at his post, in defiance of the usages of nations.”14 But his reports of Tyler’s proposal caused unease in London — Prime Minister Peel told Queen Victoria that Tyler’s plan suggested the worst outcome in the McLeod matter was to be expected.15 112

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And whatever its pacific inclinations, the Peel government came to office girding itself for war.16 Prime Minister Peel told Aberdeen, Lord Haddington (the First Lord of the Admiralty), and Lord Stanley (the secretary of war and the colonies): “Considering the state of our relations with the United States, and the possibility that some immediate and decisive demonstration on our part may be necessary, it appears that we ought without delay to take such measures as shall enable us to make it with effect.”17 The government instructed Canadian Governor General Sydenham to maintain two regiments at Halifax and Lord Stanley was told to look to defences in Bermuda.18 Peel also assured the Queen that he had advised preparations of naval forces, and had positioned these in a fashion avoiding needless alarm in America.19 British naval forces were marshalled at Gibraltar and Plymouth,20 although it seems the British never dispatched this fleet — in November 1841, Lord Aberdeen reported that the British “abstained from sending ships of war to their intended destination, rather than afford any ground for misconstruction” during the tense standoff over McLeod.21 On the fractious New York-Canada frontier itself, American authorities reported British naval activity along the Niagara: two armed British steamers — the Minos and Toronto — were berthed at Chippawa and another two were expected to be constructed.22 Webster promptly sought assurances from Fox that the ships, there in violation of the Rush-Bagot agreement, were intended for defensive purposes only23 — a guarantee Fox was happy to provide.24 Still it did not help matters that anti-British insurgents in New York managed to purloin gunpowder from a municipal magazine at Lockport, blow up a lock on the Welland Canal in Canada, and fire cannons at the British steamers anchored on the Niagara River between Navy Island and Chippawa.25 US General Winfield Scott, back at the frontier by this juncture, placed the risk of war at 50 percent and called for efforts to build up American forces on the lake.26 Some historians doubt that Britain and the United States would have gone to war over the fate of a single man.27 But happily for trans-Atlantic relations, that hypothesis was never tested. Matters in 113

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New York changed for the better. McLeod’s trial opened in Utica, New York, on 4 October 1841 and proceeded for eight days, with the jury hearing six days of evidence from the key protagonists in the Caroline raid. This evidence included affidavits from many of the British and Canadian participants,28 although Andrew Drew himself refused to take part. The commander of the raiders preferred simply to dispute publicly McLeod’s presence at the Caroline’s destruction, and contest “the right of the United States Government to bring any British subject to trial as a felon, for an act of duty performed by order of her Majesty’s Government.”29 At the end of the trial and after a mere thirty minutes of deliberation, the New York jury found McLeod not guilty.30 The British attributed this outcome to McLeod’s alibi — one that placed him elsewhere than among the Caroline raiders on the night of 29 December 1837.31 The prosecution case alleging McLeod’s presence on the raid was also weak: witnesses for the prosecution were a discreditable lot, seemingly driven by a mix of personal animus and affiliations with the Hunters’ Lodges.32 And the witnesses who claimed to have seen McLeod kill Durfee never appeared — Fox was not sure whether these men “took flight themselves, or whether they were kept out of the way purposely.”33 Now free but facing the risk of retaliation from members of the Hunters’ Lodges, McLeod quickly decamped for Canada. Spirited out of the United States via Lake Champlain in the company of a county sheriff, he was greeted in Montreal with “manifestations of joy and congratulations.”34 The political temperature decreased following McLeod’s deliverance. Fox predicted (correctly, as discussed below) that Congress would enact rules on court jurisdiction to prevent a recurrence of the McLeod crisis.35 But the Canadian’s release from peril did not resolve the broader issues of international law. Ambassador Fox noted that the very fact of McLeod’s trial remained an outrage,36 a matter for which his new superior, the Earl of Aberdeen, instructed him to seek reparations.37 On the American side, the Caroline raid remained an irritant. In his first annual address to Congress in December 1841, President Tyler expressed regret that, unlike the McLeod matter, the 114

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Caroline dispute remained unresolved. He restated the American position forcefully: This Government can never concede to any foreign government the power, except in a case of the most urgent and extreme necessity, of invading its territory, either to arrest the persons or destroy the property of those who may have violated the municipal laws of such foreign government or have disregarded their obligations arising under the law of nations. The territory of the United States must be regarded as sacredly secure against all such invasions until they shall voluntarily acknowledge their inability to acquit themselves of their duties to others. . . . To recognize it as an admissible practice that each Government in its turn, upon any sudden and unauthorized outbreak which, on a frontier the extent of which renders it impossible for either to have an efficient force on every mile of it . . . may take vengeance into its own hands, and without even a remonstrance, and in the absence of any pressing or overruling necessity may invade the territory of the other, would inevitably lead to results equally to be deplored by both. When border collisions come to receive the sanction or to be made on the authority of either Government general war must be the inevitable result. While it is the ardent desire of the United States to cultivate the relations of peace with all nations and to fulfill all the duties of good neighborhood toward those who possess territories adjoining their own, that very desire would lead them to deny the right of any foreign power to invade their boundary with an armed force.38

But in his address, Tyler also suggested a way out of the impasse: “I can not but indulge the hope that the British Government will see the propriety of renouncing as a rule of future action the precedent which has been set in the affair at Schlosser.”39 By this date, both the Tyler administration and the Peel ministry wished themselves rid of the remaining irritants in their bilateral relationship. In parallel to the Caroline and McLeod disputes, the British and American authorities had been negotiating border settlements, especially as between New Brunswick and Maine. The time 115

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had come to bundle these long-stymied disputes between Britain and the United States into a single negotiation. Accomplishing this objective required new representation. The Peel government was distressed by Fox’s dislike for Americans and their institutions. Aberdeen reportedly concluded that Fox was “not quite the man for the post” and that he did not carry “the moral and intellectual weight that the present situation demands.”40 Aberdeen tapped Alexander Baring, Lord Ashburton, in February 1842 to travel to Washington with instructions to resolve the outstanding grievances, including the Caroline (raised almost as an afterthought in Aberdeen’s directions).41 An old acquaintance of Webster’s, a retired grandee of the Barings Brothers bank, a Maine landholder, and related by marriage to a US senator, the sixty-seven-year-old Ashburton favoured harmonious relations with the United States. His appointment was received by Secretary of State Webster — in a prior life, Barings’s legal counsel — as the most agreeable of outcomes.43 Indeed, his appointment may have reflected lobbying done by Webster of the Peel government, through Barings Bank.43 Both the London and American stock markets rose on news of the mission.44 Palmerston, now on the opposition benches, was less pleased, fearing Ashburton did not properly appreciate the importance of Canada, and predicting he would make excessive concessions to the Americans.45 Ashburton arrived in the United States just as another Canadian, John Horgan, was arrested in New York on charges related to the Caroline. Horgan was released, and then rearrested a few weeks later while on another trip to the United States. The journalist and former secretary to Francis Bond Head was treated by the US press as a blowhard who had boasted of a role in the Caroline in quest of notoriety. He was released when a judge concluded there was no evidence connecting him to the raid.46 Though resolved quickly, the Horgan matter underscored the need for a broader settlement of the Caroline dispute. The lingering legal issues stemming from the McLeod trial were the most easily resolved. On this question, there was no difference of legal opinion. Webster had, after all, quickly embraced the British view that an individual “cannot be responsible in the ordinary Courts of another 116

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Figure 14.1.  Portrait of Alexander Baring, Lord Ashburton, 1842.

COLLECTION OF THE NEW YORK HISTORICAL SOCIETY, USA / BRIDGEMAN IMAGES

State” for “an act committed by the command of his Sovereign.”47 And so in direct consequence of the McLeod affair, the United States Congress passed “An Act to provide further remedial justice in the courts of the United States.”48 The new law allowed the federal government to remove cases involving subjects or citizens of a foreign country from state courts to the federal courts. The settlement of the Caroline dispute itself was more complicated because of the gap in legal positions. In his instructions to Ashburton, 117

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Aberdeen repeated the British claim of self-defence, and urged the untenable nature of any claim for compensation stemming from the steamboat’s destruction. On the matter of the British incursion into New York, the foreign secretary also pointed to the US government’s delinquency in enforcing order on the frontier. But perhaps responding to Tyler’s implied solution in his 1841 address to Congress, he was reluctant to enter “into any disquisition or inquiry” on the law of nations in describing the legal scope of the right to self-defence: “It must be the result of actual necessity of the moment, and can never be justified by precedent or example.” Aberdeen instructed Ashburton simply to represent the Caroline raid “as an act purely of self-defence, the necessity of which Her Majesty’s Government lamented at the time, and which they hope, as sincerely as the American Government, may never form a precedent in the character of the relations of the two countries.”49 It would not be as easy as that. The Americans persisted in disputing the legitimacy of the Caroline raid. Ashburton reported to his superior that “something of an explanation must pass to satisfy the public feeling which has been and which continues [to be], though in a diminished degree, very sensitive on the subject.”50 Later, he reported that the raid “has occupied the public mind for nearly five years, and what is called a settlement of it is expected, and, indeed, without it there is reason to apprehend that there would be a general indisposition to settle anything else.”51 After extended negotiations over boundary issues, Webster wrote to Ashburton on the Caroline matter in July 1842, asserting that the act by the raiders of entering US territory was “itself a wrong and an offence to the sovereignty and dignity of the United States . . . ; a wrong, for which to this day, no atonement or even apology has been made by Her Majesty’s Government.”52 He attached to that correspondence his 24 April 1841 letter to Ambassador Fox, laying out his formula for self-defence: a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation, in which the defender does nothing unreasonable or excessive; and keeps clearly within the necessity impelling the defence.

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In response to Webster’s July 1842 missive (and after the secretary of state lobbied for two days for inclusion of the word “apology”),53 Ashburton scripted a letter interweaving “the degree of apology which [he] thought the case required, with a decided justification of what was done.”54 In it, he affirmed the importance of territorial sovereignty, and proclaimed that on this issue, “we are perfectly agreed as to the general principles of international law applicable to this unfortunate case.” But however strong the reciprocal duty to respect territorial sovereignty, it is admitted by all writers, by all jurists, by the occasional practice of all nations, not excepting your own, that a strong overpowering necessity may arise when this great principle may and must be suspended. It must be so, for the shortest possible period during the continuance of an admitted necessity, and strictly confined within the narrow limits imposed by that necessity. Self-defense is the first law of our nature, and must be recognized by every code which professes to regulate the condition and relations of man. Upon this modification, if I may so call it, of the great general principle, we seem also to be agreed; and on this part of the subject I have little more than repeat the sentiments, though in less forceful language, admitted and maintained by you in the [24 April 1841] letter to which you refer me.55

It was, therefore, a dispute not of principles of law, but rather the application of law to fact. And on this point, Ashburton differed from Webster. He pressed the point with a hypothetical problem: Supposing a man, standing on the ground where you have no legal right to follow him, has a weapon long enough to reach you, and is striking you down and endangering your life, how long are you bound to wait for the assistance of the authority having the legal power to relieve you? Or, to bring the facts more immediately home to the case, if cannon are moving and setting up in a battery which can reach you, and are actually destroying life and property by their fire; if you have remonstrated for some time without effect, and see no prospect of relief, when begins your right to defend yourself, 119

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should you have no other means of doing so than by seizing your assailant on the verge of a neutral territory?56

Ashburton again recounted the facts — and especially the failure of American authorities to intervene and forestall the actions of the insurgents. He then posed rhetorical questions of Webster: How long could a government, having the paramount duty of protecting its own people, be reasonably expected to wait for what they had then no reason to expect? What would have been the conduct of American officers? What has been their conduct under circumstances much less aggravated? I would appeal to you, Sir, to say whether the facts which you say would alone justify the act, viz.: “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation,” were not applicable to this case in as high a degree as they ever were any case of the similar description in the history of nations.57

In an obvious effort to appease American sentiments, Ashburton then tempered his comments by insisting that in conducting the raid, no disrespect to the sovereign authority of the United States had been intended. And Ashburton also bent the facts to suit this purpose. He pled (unpersuasively, as discussed in prior chapters) that Drew’s raiders believed the Caroline was berthed at Navy Island when they set out, and only upon rounding the point of the island determined that the Caroline was on the New York shore. This discovery constituted a sudden revelation meeting Webster’s own threshold of “no moment left for deliberation.” That is, “the expedition was not planned with a premeditated purpose of attacking the enemy within the jurisdiction of the United States, but that the necessity of so doing arose from altered circumstances at the moment of execution.”58 Britain, claimed Ashburton, wished no recurrence of such an invasion of sovereignty and regretted that “no explanation and apology for this occurrence was not immediately made.”59 Such explanation of the necessity that impelled the British might have prevented much complaint and recrimination. Added to which, Ashburton gently 120

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reminded Webster that Britain had its own grievances, alluding to McLeod’s trial. Ashburton’s letter served its purpose. Webster’s August 1842 response to it welcomed the shared view on the applicable principles of international law, leaving only the applicability of the law to the facts in dispute. But as the British letter also constituted an acknow­ ledgement that no slight to the United States was intended and conceded that an explanation and apology were overdue, Webster also stated that “the President is content to receive these acknowledgments and assurances in the conciliatory spirit which marks your Lordship’s letter, and will make this subject, as a complaint of violation of territory, the topic of no further discussion between the two governments.”60 This final exchange amounted to a shared understanding on the law, and an agreement to disagree on the application of it to the facts. This 1842 denouement to a five-year fractious quarrel was, in fact, unsurprising. The Tyler administration had good reason to wish resolution of trans-Atlantic irritants. In difficult economic times, the American treasury was depleted and the government was struggling to finance its activities. In October 1841, Webster approached Barings Bank in London for a loan to the US government, and was told that unless Ashburton’s mission was successful, no one in the United States would be receiving loans.61 After the August 1842 Ashburton-Webster exchange, the Americans quietly dropped their claim for compensation, and the two envoys concluded a broader settlement. This broader agreement resolved border disputes, especially along the Maine frontier, and addressed issues surrounding the African slave trade. Codified as the Webster-Ashburton Treaty, the precise boundary settlement was initially warmly received, but eventually provoked controversy in both the United States and Britain, fuelled by the discovery of various old maps that affirmed (or not) the original claims made by the two powers.62 Temporarily exiled to the opposition benches, Palmerston balked at the treaty, calling it disgraceful and disadvantageous. It was the product of the “half-Yankee” Ashburton who lacked proper 121

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appreciation of British and Canadian interests, as he had more invested in the United States.63 But Palmerston’s vitriolic response had little lasting impact, and the American disgruntlement was exceeded by concerns about economic recovery.64 The controversy abated, and the treaty had the long-​term effect of moderating trans-Atlantic tensions and securing the northeast border, paving the way to today’s peaceable frontier.65 Never actually mentioned in the treaty text, the Caroline matter ended with Webster’s August 1842 letter. When the Webster-Ashburton Treaty was presented to the senate, President Taylor declared that Ashburton’s conciliatory July letter of apology and assurances of respect for American sovereignty were “sufficient to warrant forbearance from any further remonstrance against what took place, as an aggression on the soil and territory of this country.”66 In this manner, the Caroline evaporated as a political irritant between the United States and British North America. Left unresolved was the question of who was actually right in the dispute.

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Part III

The Merits of the Caroline

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

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ooked at from 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 “intertemporal 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 necessity (“necessity,” “overwhelming, leaving no choice of means”), proportionality (“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 125

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sweeping concepts of “self-preservation” advanced by states of the era.4 That concept contained few of the proportionality and immediacy preoccupations invoked by Webster — and which became one of the most enduring legacies of his formulation. The assorted legal arguments deployed by diplomats, politicians, and jurists in the Caroline dispute betrayed the unsettled state of international law in the period. They constituted a muddled mix of justifications predicated on necessity and self-preservation — positions that exempted state conduct from the regular rules of law, such as observance of neutrality — and a more modern conception of self-​ defence as a doctrine with clearer (but still contested) criteria. Answering the question of “who was right” therefore obliges an inquiry into the history of an idea: when can violence lawfully be directed by one political entity against another? This is not a concept with a straightforward provenance; its origins date to the classical period, especially the “natural law” ideas of Rome. But these ancient concepts were reflected in a more recent medieval, and especially early modern, intellectual history, on the cusp of one of the most consequential shifts in international law thinking. Soon, in the nineteenth century, a theory of international propriety infused with a natural law tradition, derived from the writing of prominent jurists, would be overtaken by a “positivist” world view, finding authority for rules in state practice. International law was to be nothing more than the product of treaties, custom (the unwritten practices of states, called “usages” in the period), and judicial opinions, often summarizing state practice.5 Like their predecessors, nineteenth-century jurists — now often former or current advisors to diplomatic chancelleries, leading military figures, or associated with new university chairs in international law — would still compile treatises that were then cited regularly by diplomats in official business.6 But these textbooks were focused on summarizing customary and treaty obligations. International lawyers and international law would drift away from the more philosophically inclined laws of nature, articulated by influential philosophers and occasional diplomats proclaiming rules of conduct derived from religion, reason, morality, or antiquity. In the nineteenth century, treaties and custom, and the textbooks 126

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discussing them, were preoccupied with war and peace. Positivist thinking about conflict and the relations between states would ultimately tack on a practical, even cynical, course, and remain there until the mid-twentieth century. But much of this was in the future by the time of the Caroline. International lawyers and diplomats of the 1840s still found comfort in an older tradition attuned to natural law: something that remained especially true in the Anglo-American world. Indeed, lawyers argued at McLeod’s trial that the law of nations stemmed from treaties and judicial precedent — but also natural law.7 In practice, therefore, the doctrinal rules of the era were drawn from the writings of the famous jurists, and as noted in 1918, many of the works of the period “reflect the personal interpretation of the author, and are more concerned with the ideal rule of conduct than with the rule actually observed.”8 From these treatises’ maxims, both sides in the Caroline dispute could advance their cases relying not just on practice and precedent, but also (sometimes contradictory) norms and ideals. By reaching for these idealized principles to articulate a standard to which both sides could agree, the diplomats who settled the Caroline matter preserved, as if in amber, a principled doctrine of lawful war during the subsequent era of positivism: one that would re-emerge with vigour when the international community sought to eliminate war as policy in the twentieth century. The following chapters trace the evolution of the concepts of war and lawful force, pointing to how the Caroline affair’s settlement derived a surprisingly resilient doctrine drawn from the uncertainties of the nineteenth century.

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Chapter 16

The Idea of War If the Wars of civilized people are less cruel and destructive than those of savages, the difference arises from the social condition both of States in themselves and in their relations to each other. Out of this social condition and its relations War arises, and by it War is subjected to conditions, is controlled and modified. — Carl von Clausewitz1

I

n its broadest sense, “war” is violence designed to compel an outcome.2 “War,” the Oxford English Dictionary reports, means a “hostile contention by means of armed forces.” But in its practical use, war differs from mob violence by its degree of organization, and usually from brigandage by its political objectives. As the full Oxford English Dictionary definition also suggests, we usually associate war with a political state — that is, at least one party to what we term a “war” is a government. States and governments are creatures of law. But while in its exercise, war may be an organized clash between these legal creatures — ​or increasingly, between one or more of them and some other opposing party — we sometimes imagine war as the negation of law: the famous “mere continuation of policy by other means.”3 The originator of that phrase, the Napoleonic war veteran Carl von Clausewitz, had little time for laws in war. He dismissed them as “self-imposed restrictions, almost imperceptible and hardly worth mentioning, termed usages of international law” that accompany war “without essentially impairing its power.”4

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Then, as remains true to an extent today, law did not govern war. And indeed, in Clausewitz’s time (his influential work, On War, was published after his death in 1832), war was an entirely legal practice. But even Clausewitz recognized the existence, independent of war itself, of a “social condition,” one that he felt (in the ethnocentrism of his day) made war between “civilized people less cruel and destructive than those of savages” and which subjects war to standards that control and modify it.5 In the European tradition that would influence the concept’s future trajectory, war had its own rituals and expectations — its surrounding penumbra of “social conditions.” One of these social conditions was international law. The European jurists who shaped the law of nations were heirs of Greek and Roman classical thought, sources they cited with wild abandon and in full expectation that a bon mot or two from some authoritative ancient text would carry their arguments. This ancient tradition greatly influenced thinking about war. However unseemly its conduct, war in antiquity was rarely an exercise in simple caprice. Though often inclined to pretext, the ancients sought to clothe their conduct in morally worthy grievances. For example, the Peloponnesian War, which shattered fifth century BCE Greece, may have been a geopolitical struggle between rivals Athens and Sparta. But as many students of political science are dismayed to learn, Thucydides’s famous account of that conflict is a litany of formalized grievances and counter-grievances, openly pled in justification of recourse to arms.6 Republican Rome, for its part, propounded formulistic rituals that, in Roman eyes, ensured that the wars they fought were always just.7 Moreover, Roman justifications for war were often clothed in complaints about wrongs done to Romans, typically involving the mistreatment of ambassadors or allies (sometimes newly acquired to justify action against intended enemies).8 This was sometimes more than intellectual artifice — there are instances of Rome declining wars where the required provocation was absent.9 It exaggerates, however, to suggest that Rome — or Greece before it — articulated a true theory of lawful war. The famous Roman orator and lawyer 130

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Cicero only briefly outlined the parameters of just war: as retribution for wrongdoing, and as defence faced with danger.10 The concept of defensive war was vast, malleable, and tied to imperial interests: Caesar’s patently aggressive, first century BCE war in Gaul was, in Cicero’s eyes, a defensive war because Gaul was an object of long-standing danger to Rome.11 On the topic of war, Cicero is often best recalled as having argued “in times of war, the law falls silent.” This is a claim to which even today’s jurists sometimes feel impelled to respond.12 But where invoked as a Clausewitz-like discounting of law in time of war, it is usually quoted out of context. Cicero’s observation was directed at the mob violence besetting the Roman republic, not true war. It is more accurately translated as “laws are silent when arms are raised.”13 Cicero’s point was not that conflict should be equated with legal anarchy. Rather, he argued that formal legal remedies were unwieldy in times of violent crisis, obliging recourse to a more fundamental principle, tacitly recognized by a deeper law of “nature”: the natural principle giving people the right to defend themselves. In this manner, Cicero anticipated an important distinction made by early modern jurists between the law and a more primordial right to self-preservation. Cicero’s recourse to a law of “nature” also reflected another lasting contribution of ancient thought: the natural law tradition propounded by stoic philosophers. Natural law thinkers, Cicero among them, viewed the world as webbed together by a single, universal set of moral principles, regardless of how fissioned into different political and cultural units humanity might be.14 As it was ultimately applied to war, natural law philosophy was idealistic, seeing war as an effort to vindicate justice.15 While this “just war” tradition remained underdeveloped in antiquity, it flourished in medieval Christendom — providing a convenient means of reconciling the pacifism of Christian doctrine with the realpolitik of violent political strife. The Christian gospels regarded war as impermissible, but classical theory could be mined for righteously minded justifications for war.16 Thirteenth-century 131

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theologian Thomas Aquinas could argue, therefore, that it was proper for rulers “to have recourse to the sword of war in defending the common weal against external enemies.”17 For Aquinas, “just war” comprised three requirements: the authority of a sovereign by whose name the war was waged; a just cause (requiring that those who are attacked are deserving of that treatment); and the proper intent (animus) to advance good and avoid evil.18 The third element — animus — was the most Christian aspect of the doctrine, and attracted close scrutiny from medieval theologians.19 The focus on “just cause” — casus belli — would, however, have more lasting consequences. For one thing, it meant that a war could not be just on both sides, a consensus view that jurists only slowly abandoned. Only one belligerent acted justly, and the other was engaged in some species of banditry.20 For another thing, jurists needed to develop much clearer understandings of just causes than had their ancient forebears. Just wars were not necessarily defensive ones, done to stave off danger. They could be proactive, enforcing proper interests against recalcitrant opponents, and to this end employing force in the degree necessary to accomplish that just end (but no more). In the writings of some jurists, this standard imported an element of proportionality to the means of warfare, but only of the most pliable sort. Not much moderation could be expected of a doctrine that counselled that all means were available that serve a just end.21 Medieval theologians did envisage a separate concept of self-defence. But in keeping with Cicero before them, this was conceived as a natural, individual right, tied to the instinctual self-preservation of living things and exercisable without permission from state officials. Approached in this fashion, self-defence was narrower than “just” war, done as state policy. It was also narrower in the sense that it was justified by, and limited to, the immediate need of repelling an actual attack.22 But even here, there was some leeway: self-defence might justify violence done in anticipation of a foe ready to strike.23 By the time of the Caroline, the early “just war” deliberations were centuries in the past. More immediate, however, was their recasting in the hands of the great jurists of the seventeenth and eighteenth 132

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centuries — individuals whose thinking would be invoked regularly in the debate over the Caroline. Party to the same natural law theories that animated their predecessors, these scholars embarked on a slightly different project, reflecting the changing politics of Europe. More centralized, tangible states had, by this time, replaced the patchwork quilt of personal fiefdoms of the medieval period. This new political canvas drove early modern jurists to refine natural law, retooling it more as an index for the rights and duties of states and less as a universal principle. In this fashion, natural law persisted, and was catalogued and systematized by the writers of the period. But it also sat in uneasy company with a new doctrine, the product of human agency and conduct known as the “law of nations.” And the source of these laws of nations — envisaged initially as secondary rules — stemmed from state conduct, through treaties or regularized custom.24 This focus led to the abandonment of older preoccupations with animus, and ultimately, even a relaxation of just cause, as defining elements of lawful war. It also led to a confusing proliferation of typologies and categorizations of war and its justifications attempting to bridge the gap between older natural law concepts and the new law of nations. In keeping with emergence of strong states, the early modern jurists treated war as a status existing between sovereign states. For instance, Hugo Grotius (1583–1645), probably the most influential of international law writers, asserted that war could arise only between states, and must be publicly declared by a state’s sovereign. This declaration clothed the conflict in legitimacy25 — what jurists would come to label a “perfect” war. But a war could still be legal without these formalities so long as it was undergirded by a just cause, which was defined by Grotius as, broadly speaking: defence against a wrong; action to extract what was owed; or punishment for an injury.26 This essential distinction between war, formally declared between states, and everything else, attracted the support of seventeenth-​ century contemporaries,27 though scholars debated the precise ingredients constituting a just war.28 The prominent German jurist Samuel von Pufendorf (1632–1694) followed Grotius in formalizing lawful war, underscoring the importance of a declaration of war 133

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between sovereign states, but also placing emphasis on the need for a just cause. These just causes arose where there was a need to defend people and property, to advance rights ignored by the other state, to obtain satisfaction for injury, and to forge a guarantee for the future.29 In refining the concepts of just war, jurists drew distinctions between defensive and offensive war. While offensive wars could be just, some jurists preferred more defensive conflicts undertaken in response to an unjust act of violence committed by another sovereign, or, indeed, even in anticipation of such an attack.30 Here, though, both the seventeenth- and eighteenth-century writers followed their medieval predecessors in treating a defensive war as distinct from true self-defence, discussed in Chapter 17. A defensive war might be waged as policy by states to stave off prospective threats. This gave it great pre-emptive range,31 and also allowed it to be reconciled with the formalities of wars in the form of declarations.32 To help demarcate the limits of war, jurists also emphasized the concept of neutrality in a conflict between belligerents. In a widely accepted view, Grotius urged neutral states to be impartial in providing supplies to troops, in permitting transit, or in assisting besieged parties.33 Some eighteenth-century writers argued, however, that neutral states might have an obligation to intervene in aid of a state engaged in a just war, and decline aid to an unjust belligerent.34 And Grotius himself had advised that in a just war, a state may take possession of a place in a neutral country, provided there was real danger.35

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Chapter 17

Imperfect Wars Our own Government has settled the character of this hostile attack. It has decided it to be an “imperfect sort of war.” — Judge Daniel Tallmadge, Superior Court, New York (1841)1

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hroughout this period, jurists opining on war struggled to accommodate other acts of violence that fit poorly into the formula of formalized inter-state conflicts. For instance, conflicts between states and what we today call “non-state actors” were rarely regarded as true wars. Well into the modern period, there was no true concept of a “civil war,” let alone war between a government and an insurgency.2 And even in antiquity, Cicero distinguished conflicts with politically organized peoples from those involving pirates or other criminal enterprises — the latter occupied a halfway house between proper war and law enforcement.3 Pointing to Cicero, Pufendorf considered combat undertaken with private actors not a true war, but rather “freebooting.”4 Still, by the eighteenth century, jurists were prepared to recognize “imperfect wars”: conflicts between states lacking formal declarations of war, but also by the early nineteenth century a class of conflicts short of full interruption of peaceful relations between states.5 Imperfect wars amounted to acts of war, without a state of war.6 In the nineteenth century, these forms of self-help by states went under the name “measures short of war.”7 Examples included reprisals — forceful acts 135

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undertaken to vindicate a right “without an interruption of friendly relations.”8 But imperfect wars also included self-defence. That concept of self-defence remained rooted in the natural law, and the rights of individuals to immediate self-preservation.9 Self-defence, by its nature, did not lend itself to formal declarations. It stemmed, not from policy, but from necessity.10 For these reasons, it was confined to instances of attack and included constraints more demanding than defensive war. Jurists argued that “what can be avoided is not a necessity” and that action in response to a necessity was bounded by a concept of proportionality: “[I]n a defence one becomes an aggressor instead of a defender if he goes beyond the limit.”11 The jurists also tied self-defence to an imminence of the peril. Grotius asserted that war “in defence of life is permissible only when the danger is immediate and certain, not when it is merely assumed.”12 Some jurists were prepared to recognize that a limited right to self-defence existed when the conduct of the attacker betrayed a manifest means and intent;13 that is, against “enemies who were presently going to attack.”14 Pufendorf wrote that the beginning of the time at which a man may . . . kill another in self-defence, is when the aggressor, showing clearly his desire to take my life, and equipped with the capacity and the weapons for his purpose, has gotten into the position where he can in fact hurt me.15

The obvious worry here, though, was misconstrued necessity. As Grotius argued, fear alone did not justify an anticipatory use of force. A mere plot was insufficient to justify self-defence.16 What Grotius wrote mattered. His thinking was well known among the jurists of the early nineteenth century. So too was that of one of his populizers, eighteenth-century English philosopher Thomas Rutherforth. Rutherforth’s own lengthy distillation of Grotius was much favoured in American circles, including in the Caroline de­bates.17 Daniel Webster himself was obviously familiar with Grotius and his views on self-defence. Webster and his co-counsel had cited the Dutch jurist in argument during the 1825 US Supreme Court case The Marianna Flora. That matter involved an exchange of fire between 136

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an American ship and a Portuguese ship in which both had thought the other a pirate. In concluding that the American ship acted properly in firing on the Portuguese vessel, Supreme Court Justice Story held that “necessary self-defence” could justify a “hostile attack, in a time of peace.” And on the facts, the peril faced by the American vessel “was not a case of mere remote danger, but of imminent, pressing, and present danger.”18 But whatever Grotius’s significance, by far the most influential jurist of international law at the time of the Caroline was the Swiss diplomat and writer Emer de Vattel (1714–1767).19 An envoy in the employ of the Elector of Saxony, Vattel wrote The Law of Nations, first published in 1758. Intended by this “modern-minded diplomat” as an accessible manual for an audience of heads of state and ministers, Vattel’s famous work was more practical than those of some earlier jurists.20 It was also more “democratic” than the writings of his predecessors — the treatise included the required deference to absolute monarchies, but hinted at a concept of popular sovereignty that would soon enflame the French revolutionaries. Indeed, Vattel’s treatise likely influenced at least some of the philosophes who provided the intellectual oxygen for that revolution.21 At the same time, Vattel’s book also reflected its author’s lack of formal legal training — US Supreme Court Justice Story noted in an 1814 case that while Vattel had great merit as a jurist, other learned authors had accused him of falling “into great mistakes in important ‘practical discussions of public law.’”22 Vattel’s diplomatic experience drove the book’s practical bent, but was not substantial enough to bridge all the subjects the author undertook to study. The treatise is achingly ambiguous and occasionally contradictory. British philosopher Jeremy Bentham mocked the Swiss’s tautologies as amounting to nothing more than asserting “it is not just to do what is unjust.”23 But despite The Law of Nations shortcomings — and indeed, because of them24 — the book enjoyed widespread circulation. In the first half of the nineteenth century, Vattel was treated as “a kind of oracle with diplomats,”25 searching for a systematic international law manual to deploy in solving the new international law problems of the post–Napoleonic War period. The Law of Nations’ sweeping 137

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scope, its simple presentation, and Vattel’s “oracle”-like ambiguity made his book a useful reference in diplomatic correspondence.26 Vattel “told professional diplomats what they wanted to hear with the aid of everyday political examples.”27 And his tendency to invoke general rules then cored with exceptions, made his work a useful rhetorical device, and an “inexhaustible source of arguments and counter-arguments.”28 In the English-speaking world, Vattel attracted a wide following. In Britain, parliamentarians invoked Vattel’s name throughout the nineteenth century, and especially in the 1830s (including in debate over the rebellions in the Canadas).29 Palmerston himself had a thorough understanding of international law, and indeed, under his stewardship, the office of the Queen’s Advocate played an unusually decisive role in British foreign policy. During the Caroline matter, he would turn to the British government’s legal advisors, whose advice was sought and received very early in the dispute.30 Soon after, an 1839 edition of Vattel’s treatise became the sole “internationally accessible source for the determination of international law,” and was in every British embassy. Moreover, Palmerston exhibited a thorough understanding of the Swiss jurist’s thinking in his diplomatic notes, and expected the same from his ambassadors.31 In his political life, Palmerston occasionally invoked Vattel in his public utterances, sometimes in considerable detail.32 For its part, steeped in the natural law tradition of philosopher John Locke, the early American Republic was particularly attuned to a natural-law inclined law of nations, and Vattel was a favourite among the US “founding fathers.”33 The jurist’s unusually comprehensive treatment on the law of neutrality appealed to US statesmen, confronted with an array of hostile great powers.34 In the late eighteenth and early nineteenth centuries, the American legal profession was in transition from routinized provincialism to a more lasting participation in public affairs. Either directly or indirectly, lawyers were exposed to the work of Grotius, Pufendorf, and Vattel.35 Vattel’s Law of Nations was adopted as a textbook in American colleges, and became “the favorite authority in American 138

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theory of International law,”36 and early in his career as a practising lawyer, Daniel Webster made close study of the book.37 Between the republic’s founding and 1820, The Law of Nations was cited in court pleadings, citations, and in judicial quotations, at a rate greatly exceeding those of other jurists.38 As discussed later, Vattel’s writing figured heavily in both the arguments of the parties and the New York Supreme Court’s reasoning in McLeod’s trial in 1841.39 Vattel was also the most common authority cited in US diplomatic correspondence in the 1800s,40 and he also starred in congressional debates over the Caroline and McLeod affairs. It is true some congressional figures argued that international law “is the usage of nations; no more,” and asserted that the great jurists such as Vattel contemplated rules for continental Europe and not the “purer principles of honest jurisprudence” applicable in the Anglo-American world,41 but these were claims unsupported by practice. During the McLeod controversy, senators regularly invoked Vattel, described by one as “an author admitted to be of the highest authority on questions of international law,”42 and legislators deployed Vattel as a cudgel to beat down the arguments of their adversaries.43 As this suggests, all sides in the Caroline dispute were intimates of Vattel’s logic and writings. As such, his view on war deserves careful consideration. Like several of his predecessors, Vattel divided conflict into war, and specifically “public war” between states, and other violence, including self-defence. For Vattel, as with his predecessors, self-defence was an individual natural right, tied to preservation, and bounded by necessity.44 War, in comparison, was something only states could do, and was bifurcated into “defensive” or “offensive.” Vattel’s vision of a defensive war reached beyond strict reaction to attack, but the object of a defensive war was repelling the threat posed by an enemy.45 Offensive war was motivated by the “multifarious concerns of nations,”46 but Vattel’s “justificatory reasons” permitted an offensive warfare to recover that which belonged to a state or to guard future safety by punishing an aggressor.47 In other words, war could be made lawful by states “no further than is necessary for their own defence, and 139

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for the maintenance of their rights.”48 These concepts buttressed the justness of a war: war done for other reasons was unjust, and a war could not be “just on both sides. One party claims a right; the other disputes it.”49 These possibilities opened the door wide to pre-emptive war. Vattel was not opposed to pre-emption in some circumstances, faced with a powerful adversary of ill intent. As he reasoned, “if a stranger levels a musket at me in the middle of a forest, I am not yet certain that he intends to kill me; but shall I, in order to be convinced [of] his design, allow him time to fire? What reasonable casuist will deny me the right to anticipate him?”50 Still, Vattel warned against pretextual use of these rules — conduct that superficially complied with them, but was undertaken for nefarious purposes — and he worried especially about the threshold for a truly defensive “justificatory reason.” A state “must either have actually suffered an injury or be visibly threatened with one, before we are authorized to take up arms, or have just grounds for making war.”51 Other aspects of Vattel’s writings counselled a similar caution: A state had “a right to prevent other nations from obstructing her preservation, her perfection, and happiness, — that is, to preserve herself from all injuries.”52 In exercising this right to security, a state could “make use of force and every honorable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.”53 These formulations raised the question of how to judge a threat, not yet realized. Would the assemblage of military power be enough? For Vattel, everything turned on intent. Pre-emptive war required evidence of perfidy and base intent, not simply the accrual of alarming power.54

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Chapter 18

Self-Preservation at Copenhagen Was it to be contended; that in a moment of imminent danger and impending necessity, we should have abstained from that course which prudence and policy dictated, . . . because . . . we should have the consolation of having the authority of Puffendorf to plead? — Lord Canning (3 February 1808)1

V

attel’s concerns were prescient, as states in the nineteenth century began deploying a sweeping concept of defensive “self-preservation” to justify violence, one that went beyond the narrower concepts of self-defence employed by the great jurists. The most notable of these conflicts, raising exactly the dilemmas Vattel feared, occurred at Copenhagen in 1807. In a twist of fate, this was a campaign in which a young Andrew Drew saw action and which would also later be invoked during the Caroline dispute. In 1807, Britain was at war with Napoleon’s France. Denmark was neutral in that conflict, but possessed a significant navy that the British worried would be impressed into service by Napoleon, under the terms of a secret treaty. The British government dispatched a formidable fleet to negotiate the temporary surrender of the Danish ships to Britain, until the war’s end. Upon arriving at unsuspecting Copenhagen in August, the British commanders announced the justice of their intent and the might of their force, and proclaimed: “We come, therefore, to your shores, inhabitants of Zealand, not as enemies, but in self-defence, to prevent those who have so long disturbed 141

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the peace of Europe from compelling the force of your navy to be employed against us.”2 The Danes rejected this ultimatum, and the British responded with a land assault and sorties into Copenhagen harbour, including the one in which the Bellette, captained by John Phillimore and including young First Class Volunteer Andrew Drew, fended off a flotilla of Danish gunboats. The Battle of Copenhagen culminated days after in a bombardment by the British fleet that set large parts of the city aflame. Facing a worsening conflagration, the city sought a truce and capitulated soon after. The British seized the Danish ships, and returned them to England.3 Notice of the surrender raced ahead to London in the Bellette, selected for this honour by the fleet admiral in response to its gallant conduct in Copenhagen harbour.4 That news sparked controversy, with European states condemning the British assault. And in Britain itself, the action was greeted with mixed feelings and a “painful division of opinion existed for a considerable time, both as to the lawfulness of the expedition, and the justice of retaining the prizes which had been made.”5 It seems doubtful that the British government had closely considered the lawfulness of their conduct in advance of the siege.6 But in justifying its actions afterwards, the government argued that the peril of France, and the prospect of its fleet swelled with Danish ships, necessitated its action. The principle at issue was one of self-preservation, a term recurring regularly in the parliamentary debate over the conflict in 1808.7 Its use there was often imprecise, but it was typically invoked as a form of necessity forced upon Britain by a prospective threat,8 and distinguished from retaliation.9 In his declaration read to Parliament, King George III lamented “the cruel necessity which has obliged him to have recourse to acts of hostility against a nation” but stated that “the justification of his conduct will be found in the commanding and indispensable duty, paramount to all others amongst the obligations of a sovereign, of providing, while there was yet time, for the immediate security of his people.”10 Lord Canning, then foreign secretary, was not inclined to the niceties of international law in these circumstances. He asked the House of Commons: 142

Chapter 18: Self-Preservation at Copenhagen

Was it to be contended; that in a moment of imminent danger and impending necessity, we should have abstained from that course which prudence and policy dictated, in order to meet and avert those calamities that threatened our security and existence, because if we sunk under the pressure, we should have the consolation of having the authority of Puffendorf to plead?11

Opposition politicians, however, disputed these contentions. They appeared to concur on the international principles at stake — that the requirements of necessity could oblige taking a neutral’s property12  — ​ but disputed the urgency of seizing the Danish fleet: The pleas . . . of impending danger, to justify so flagrant a breach of neutral rights, has not even for its basis the essential ground of correctness in point of fact . . . . [E]very appearance is against the opinion that the enemy had either the inclination or the power to convert the Danish navy into an instrument of our destruction . . .13

Because of this factual dispute, the 1807 battle had become infamous by the 1840s. In 1843, the influential Edinburgh Review called the legal reasoning undergirding it a “pretense” and noted: “who will now venture to defend that occupation?”14 Some of the blame likely stems from the indefiniteness of the “self-preservation” concept invoked by the parliamentarians in 1808. At the time, self-preservation was said to be part of the law of nature, superior to other principles.15 In this respect, it was justified much as jurists described the natural law impulse for self-defence in the face of an attack. But with Copenhagen, the threat was the looming, prospective danger of a reinforced Napoleon, not an actual or even imminent assault. During the 1808 debates over the siege, parliamentarians proposed a threshold of sorts for “self-preservation,” limiting its reach. Lord Sidmouth spoke of self-preservation as stemming from “urgent and imperious duty.”16 Earl Grey argued that the government was obliged to meet a test, designed to ascertain the legitimacy of the British fear and the necessity of the resulting assault on Copenhagen.17 But in no manner did these formulae meet the narrow, reactive standard for 143

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self-defence, as described by the seventeenth- and eighteenth-century jurists. Instead, “self-preservation” bore more resemblance to Vattel’s pre-emptive “defensive war.” It evolved from there: in the nineteenth century, self-preservation was increasingly invoked to justify use of preventive force falling short of outright war, and used against a neutral state. British lawyers defended this right, even when contrary to British interests. In 1829, for instance, the Mexican government detained a British ship, Chichester, to prevent it sharing information of Mexican preparations with a Spanish fleet planning an attack. The British legal advice to the foreign secretary declared this conduct lawful, proclaiming the “first paramount duty of every Nation is that of self-​ preservation, and the Law of Nations will sanction the adoption of any measure, which may be necessary to secure this great object, although it may at some degree infringe upon the rights of others.”18 Thereafter, British government lawyers regularly exonerated foreign government treatment in violation of treaties or other rules of international law, done out of necessity in the name of self-​preservation.19 For instance, in 1834, the law officers declared lawful German demands for the expulsion of Polish and German dissidents from Switzerland to prevent incursions into German territories. Such a demand interfered with Swiss sovereignty, but could be justified “by danger of the most pressing and imminent nature, and where there are no other means of averting. In such a case, the duty of self-​preservation may excuse an encroachment on the rights of others.”20 In sum, by the 1840s, self-defence had become simply a subset of the broader right of self-preservation, a concept that could be invoked in circumstances short of true war and even in relation to neutral nations. Indeed, it was the emergence of increasingly robust concepts of neutrality that seemed to propel “self-preservation.” A uniquely helpful American pamphlet, published in 1809, summarized international law for “the farmers of the United States.” It explained that with the emergence of territorial sovereigns, law had evolved to permit neutral nations to preserve their own rights, including that of trade among the warring states. But the demands of war prompted belligerents to plead necessity as a superior principle, and “self-preservation” 144

Chapter 18: Self-Preservation at Copenhagen

as a justification for impairing this trade by neutrals,21 a development the author clearly begrudged.

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Chapter 19

Neutrality and Its Limits We are of the opinion that the place where the “Caroline” was moored was not justly entitled to the privileges of a neutral territory, and that the British forces, with a view of self-preservation, were fully justified in attacking the “Caroline,” and treating her as a belligerent vessel. — Law Officers of the Crown (21 February 1838)1

I

t is doubtful Allan Napier MacNab gave any thought to these principles of international law as he gave the order to cut-out the Caroline, or that Andrew Drew debated the legality of his earlier ventures in Copenhagen as he commanded his small flotilla across the Niagara River. In any event, though invoked in the McLeod trial in 1841, the nature of the Copenhagen conflict, and any legal justification for it, served as a deeply imperfect precedent for the Caroline. Judge Cowen in the New York Supreme Court held that the Caroline incident, unlike the Copenhagen assault, did not involve a formal war between states.2 This finding and its precise significance for the McLeod case was contested, even derided, by Cowen’s legal critics.3 In Congress, Representative Barnard stated that lawful acts of war could take place even in times of peace. He complained that Judge Cowen’s approach made every violent death done by the United States army in the First Seminole War, discussed below, a murder triable by Spain.4 Instead, for most commentators in the Caroline matter, the conflict on the Niagara River was clearly an “imperfect” conflict (to use the nomenclature of the day),5 pitting Britain against an insurgency. That 147

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status alone did not, however, address the legality of the Caroline raid. On that issue, most contemporary chroniclers of the Caroline matter focused on another concept addressed by Vattel and fellow jurists: the rules for neutral nations who “in time of war, do not take any part in the contest, but remain friends to both parties, without favoring the arms of the one to the prejudice of the other.”6 This focus was entirely natural: in the Caroline incident, there were no actual hostilities between the forces of two states. This was instead a clash between a state (Great Britain) and non-state insurgents that had spilled over to a neighbouring, neutral country (the United States). The international rules of the day grappled poorly with these sorts of facts. But more than that, they established a clash of rights between, on the one hand, an injured state and, on the other, a neutral sovereign state not itself the source of the injury, but from where the harm emanated. Some commentators — including the contributors to the London Examiner — were not fully persuaded that neutrality gave way in the interest of self-defence, the British position in the Caroline dispute. But that paper suggested that the heat of the moment — as the raiders embarked to dispatch the Caroline  — ​ was not “a time to quote Puffendorf, or object to the legality of the enterprise.”7 On that exact point, however, protagonists on both sides could mine Pufendorf, Grotius, and especially Vattel for arguments. For instance, those favouring robust territorial rights for neutrals, even in the circumstances of the Caroline, could find affirmation from Vattel. States were barred from practising “any evil manœuvres tending to create disturbances in another state, to foment disorder, to corrupt its citizens, to alienate its allies, to raise enemies against it, to tarnish its glory, and to deprive of its natural advantages.”8 More particularly, “it is unlawful to attack an enemy in a neutral country, or to commit in it any other act of hostility.”9 And American jurists of the time clearly preferred a strong version of neutrality. James Kent, for example, counselled “no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful.”10 This was not a surprising 148

Chapter 19: Neutrality and Its Limits

position for citizens of a state disinclined to the entanglement of warring European states and who feared Britain’s chief weapon of war: the blockade and boarding of neutral vessels. Perhaps for this reason, American statesmen often advanced an absolute version of sovereignty in the Caroline matter. Speaking of the raid in his first annual message to Congress in December 1841, President Tyler acknowledged forcible intervention may arise “in a case of the most urgent and extreme necessity,” but emphasized the “territory of the United States must be regarded as sacredly secure against all such invasions until they shall voluntarily acknowledge their inability to acquit themselves of their duties to others.” It may be that no indemnity could be owed the owners of the steamboat, “but that is a question which, however settled, in no manner involves the higher consideration of the violation of territorial sovereignty and jurisdiction.”11 This was a view also supported by the American diplomat and jurist Henry Wheaton — author of one of the first American international law treatises.12 Writing in 1842 in a French journal while US ambassador to Germany, Wheaton was unprepared to pronounce fully until the US negotiations with Lord Ashburton were complete. However, he denounced as unsupported by international law any hostilities taking place in a neutral nation.13 For their part, the British favoured a more provisional territorial sovereignty, abandoned when the United States failed to exercise authority over its frontier. As Sir Francis Bond Head, the lieutenant-​ general of Upper Canada, complained to Ambassador Fox soon after the raid: The Government of the United States has failed to enforce its authority by any means, civil or military; and the single question, if it be a question, is, whether Upper Canada was bound to refrain from the necessary acts of self-defence against a people whom their one Government either could not or would not control.14

His successor, Sir George Arthur, made similar points: “[T]he authorities were either unwilling or unable to prevent aggression against Canada.”15 Pointing to the ineffectualness of US efforts to forestall 149

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the invasion, or even to suppress unrest on the frontier thereafter, he later asked, [h]ow can it be said that the destruction of the "Caroline" was anything but a necessary act of self-defence on the part of the British officer; or that territory in which no power existed superior to that of . . . atrocious pirates was for the time not legally to be entered by British authority, for the purpose of necessary self-protection!16

And in Washington, Ambassador Fox asserted that the principles of “self defence and self preservation” should apply where the Americans “either cannot, or will not, guard the integrity of their own soil, or prevent it from becoming the common arsenal and recruiting ground of outlaws.” In the circumstances, “have they a right to expect that the soil of the United States will be respected by the destined victims of such unheard of violence?”17 In a similar vein, Fox told Secretary of State Forsyth that the “place where the vessel was destroyed was nominally, it is true, within the territory of a friendly Power; but the friendly Power had been deprived, through overwhelming piratical violence, of the use of its proper authority over that portion of its territory.”18 When consulted after the Caroline raid, Crown lawyers agreed. Exceptions to neutrality had been canvassed by British legal advisors in the past. For instance, during the Napoleonic Wars in 1813, the legal advisors opined that for the neutral Ottoman Empire to allow French privateers to operate from its ports in attacking British shipping was “manifestly injurious and illegal” and justified “the strongest measures” thought proper to suppress it.19 Later, they also concluded that for the British to allow Colombian privateers to operate against Spain from British Gibraltar was “an abuse of a neutral and friendly Port, which ought to be arrested.”20 The Caroline was a more complicated question. The attorney general, John Campbell, later wrote that the British secretary of war, Lord Grey, believed that “we were quite wrong in what we had done.” But Campbell believed the British had a “clear right” to seize and destroy the steamboat “just as we might have taken a battery erected by the 150

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rebels on the American shore, the guns of which were fired against the Queen’s troops in Navy Island.” Campbell “wrote a long justification of our Government, and this supplied the arguments used by our Foreign Secretary.”21 In an opinion addressed to Palmerston in February 1838, and quickly dispatched to Canada and to Ambassador Fox in Washington, Campbell, as well as the Queen’s Advocate, John Dodson, and the Solicitor General, Robert Rolfe, concluded, the conduct of Captain Drew and his men, in capturing the steamboat ‘Caroline,’ was, under the circumstances, perfectly justiciable, by the Law of Nations . . . we are of the opinion that the place where the ‘Caroline’ was moored was not justly entitled to the privileges of a neutral territory, and that the British forces, with a view of self-preservation, were fully justified in attacking the ‘Caroline,’ and treating her as a belligerent vessel.22

The Crown officers provided no further legal explanation for this conclusion, beyond reciting the facts of Navy Island’s occupation by belligerent insurgents, the Caroline’s conduct in support of them, and the New York governor’s failure to intervene. The law officers did not change their view in a second opinion, issued after US Ambassador Stevenson’s 1838 letter to Palmerston presented the US view of the facts. In keeping with earlier distinctions made in the Copenhagen engagement, they did emphasize, however, that the grounds on which we consider the conduct of the British Authorities to be justified, is that it was absolutely necessary as a measure of precaution for the future and not a measure of retaliation for the past. What had been done previously is only important as affording irresistible evidence of what occur afterwards.23

(When this opinion was conveyed to Lieutenant-Governor Arthur in Canada, the colonial secretary expressed trust that there was little possibility of a recurrence of the Caroline affair — and that he was depending on Arthur’s prudence in this respect.)24 The Crown law officers’ positions were fortified by the most elaborate legal argument in the entire Caroline affair. This was authored by 151

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Robert Joseph Phillimore, soon to be a prominent English jurist, in an open letter directed to Lord Ashburton in 1842.25 Phillimore — a nephew of the British naval captain John Phillimore who had mentored and commanded Andrew Drew — would go on to write one of the most influential nineteenth-century British treatises on international law.26 In his lengthy 1842 missive, he subordinated the dictates of neutrality to the “essential condition of national security” and elevated “self-preservation” as “a primary object by all law.”27 Drawing heavily on Vattel, Phillimore urged that “self-defence, sometimes called also the law of necessity, is paramount to that of abstaining from the invasion of an independent territory.”28 But bucking the emerging trends of the era, Phillimore did not treat the necessity of self-preservation as a carte blanche — rather, the law of nations included criteria “whereby to judge when such a case of necessity has or has not arisen.”29 On this issue, Phillimore drew again from classical sources and echoed the same concepts found in Webster’s April 1841 formula, attached to the secretary of state’s own 1842 missive to Ashburton. Thus, Phillimore cited Pufendorf for the proposition that a right to defence begins in the instant when an aggressor shows plainly its motive and means to execute its designs. The defender need not wait until the aggressor “comes within gunshot,” but may act preventively and continue to act until the aggressor is repulsed or has retreated.30 Quoting Grotius, Phillimore argued “any imminent peril, provided it be really imminent and not a mere suspicion, is a justifying cause of war.”31 These tests — and those of “a most urgent and extreme necessity” announced by President Tyler in his 1841 address to Congress — ​ were met at the time of the Caroline raid.32 Phillimore dismissed the American objection, also voiced by Tyler, that unilateral invasions by one state on the territory of another to deal with border clashes was destabilizing. The British jurist did not question the larger principle of neutrality, but argued that the facts of the Caroline involved “the very particular contingency of rebels in open war against their Sovereign, aided and abetted by the citizens of a conterminous ally of that Sovereign.”33 The last people to complain in these 152

Chapter 19: Neutrality and Its Limits

circumstances “should be the government of that ally, which, after repeated application, had been not unwilling but unable, to restrain its subjects from the commission of so disgraceful an outrage.”34 It was simply untenable — even irrational — to suggest, as President Tyler had in his address, that punctilious observance of territorial sovereignty was required until the territorial state had “voluntarily acknowledged” in words an inability to suppress the insurgency. This acknowledgement was tacit “in the state of anarchy and licence” that prevailed on the New York frontier.35 Like other British chroniclers, Phillimore could draw heavily on the ever-versatile Vattel in support of his positions. Even that stalwart of neutrality had concluded “if my neighbour affords a retreat to my enemies . . . and allows them time to recover, and watch a favourable opportunity of making a second attack on my territories, this conduct, so prejudicial to my safety and interests, would be incompatible with neutrality.” Indeed, a neutral state that refused to suppress or expel this enemy “gives me a right to enter his country in pursuit of them.”36 Phillimore would reproduce this reasoning in his 1854 international law treatise, characterizing self-preservation as a doctrine that subordinated territorial sovereignty. Pointing to the Caroline affair, and again to Vattel, he argued that a state could pursue bands of rebels onto the territory of another as a “necessary means for her safety.”37 In a later edition, he also took the matter one step further, discussing the conduct of the United States in 1837 as an example of “culpable imprudence”: where a state allows, through indifference or “gross remissness,” its subjects to invade another, it is as much an aggressor as if it itself had made the invasion by its regular military forces.38 In sum, the legal terminology deployed by the parties to the Caroline dispute was often imprecise, and muddied by the invocation of the murky concept of “self-preservation.” Nevertheless, the British position in the Caroline affair was recognizably founded on the narrow self-defence concepts familiar to the seventeenth- and eighteenth-​ century jurists, and especially Grotius. Here, though, the necessary 153

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self-defence was not in response to an attack by a hostile state. Instead, it was one of necessary self-defence against a non-state insurgency, faced with the patent delinquency of the state from which these insurgents launched their incursion. This infused the debate with disputes over territorial sovereignty. That was a concept protected in turn by the concept of neutrality, sternly advanced by the young American republic but disputed on the facts of the case by the British, with both relying on Vattel. The British case had obvious cogency in British and Canadian eyes, and some American statesmen worried it would be persuasive in the eyes of the world. In Congress, the former US president and secretary of state John Quincy Adams warned that the United States’ position was weak. While it might have been wrong for the British to enter American territory and dispatch the Caroline, it was also wrong for the Caroline to be supplying the insurrectionists from US territory. The United States, Adams suggested, had “struck the first blow”: “in the judgment of all impartial men of other nations, we shall be held as a nation responsible; that the Caroline, there, was in a state of war against Great Britain; for purpose of war, and the worst kind of war — to sustain an insurrection.” An arbitrator, the former president asserted, would likely conclude the United States had “reparation to make for all the men and for all the arms and implements of war which we were transporting and going to transport to the other side, to foment and instigate rebellion in Canada.”39 It is not entirely surprising that Adams advanced this view. The former secretary of state surely recognized the flaws of the American position, faced with the United States’ own conduct on yet another fragile frontier roiled by a complicated conflict with an insurgency. In an irony lost on few in the 1840s, the United States had treated the sovereignty of another state — in that case, Spain — as provisional, and self-defence as broad.

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Chapter 20

Self-Defence and the First Seminole War, 1817–1818 By the ordinary laws and usages of nations, the right of pursuing an enemy, who seeks refuge from actual conflict within a neutral territory, is incontestable. — Secretary of State John Quincy Adams to Spanish Ambassador (23 July 1818)1

I

n the second decade of the nineteenth century, Florida remained a Spanish possession, sharing a border with Georgia, the Mississippi Territory, and Louisiana, a region newly acquired by the United States. Like much of the crumbling Spanish empire in the Americas, Florida was restive and the American government contemplated with considerable interest its absorption into the American republic. Elements in the United States saw Florida as the natural southeastern border, and the Americans coveted access to Florida rivers, and through them, the Gulf Coast. But more than acquisitiveness was at issue. The US government also worried the territory might be reacquired by Britain and subsequently used as a base for a foreign navy able to attack New Orleans with ease. Moreover, Creeks and Seminoles operated from Florida, attacking US settlers across the contested and uncertain border, while fugitive slaves from Georgia plantations sought refuge in the Spanish territory.2 Diplomatic efforts to decide the territorial status of Florida commenced soon after the resumption of Spanish-US relations following the Napoleonic Wars in 1815. Among the issues disputed was the use 155

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of US territory by insurgents warring with Spanish authorities in New Spain. President James Monroe met these Spanish complaints with his own allegations. Monroe accused the Spanish in the weakly governed Florida territory of delinquency in controlling anti-American Indigenous and British fighters.3 Andrew Jackson — soon to be president, but then a major-general commanding the southern frontier military district — interrupted these inconclusive diplomatic discussions in 1816 by launching two attacks into the Florida territory. In both instances, the incursions were directed against regions that, while nominally in Florida, were not truly under Spanish control.4 The first — Prospect Bluff Fort — ​ was a former British fortification now in the possession of scores of African-American families, many of whom were said to be escaped slaves. Announcing his intent to the Spanish governor in April 1816, Jackson accused these “banditti” of “secret practices to inveigle negros from the citizens of Georgia, as well as from the Cherokee and Creek nations of Indians.”5 Jackson demanded the displacement of these rebels from the fort, and the return of “property” owned by US citizens. If not, Jackson claimed a right to attack the fort in self-​ defence: “the conduct of this banditti is such as will not be tolerated by our government, and if not put down by Spanish authority, will compel us, in self-defence, to destroy them.”6 The Spanish governor responded by urging Jackson not to attack the fort until the Spanish could themselves marshal the means to respond, and blamed the British for building the fort and precipitating the presence of insurgents.7 However, the Spanish efforts were too desultory, and in July 1816, US gunboats destroyed the fort after a short firefight, killing most of its inhabitants and transporting others into slavery in the United States.8 This incursion sparked little response from the Spanish authorities. The second attack — directed against Amelia Island, off the coast of Florida, south of the Georgia border — was different. Under the initial leadership of a Scottish privateer, a band of adventurers occupying the island declared it a republic. Responding to the threat of privateering, Monroe ordered the army to suppress the 156

Chapter 20: Self-Defence and the First Seminole War, 1817–1818

“establishment” on the island, a mission accomplished in December 1817.9 Spain protested this use of force against a friendly nation in peacetime and demanded the return of the island, but the United States dismissed the Spanish complaint. In justifying the US action to Congress, Monroe argued that Spain was responsible for any injuries radiating from Amelia Island, unless it was “utterly unable to prevent them.”10 That said, Spain’s territory “ought not to be made instrument, through her inability to defend it, to purposes so injurious to the United States. To a country over which she fails to maintain her authority, and which she permits to be converted to the annoyance of her neighbours, her jurisdiction for the time, necessarily ceases to exist.”11 In a letter to the Spanish government, then Secretary of State John Quincy Adams stated that the United States could not be expected to sit idly by and permit the incursion of adventurers into US territory. Nor could it “permit that the adjoining territories of Spain should be misused by others for purposes of annoyance” to the republic.12 Amelia Island was never returned to the Spanish. Through 1818, both sides continued to exchange recriminations about their respective territories being used to host elements hostile to the other.13 Diplomacy was, however, overtaken by military events. By 1818, and following border clashes, the United States was in military conflict with the Seminoles — the collective name given to Indigenous groups in Florida — and their allies. In this First Seminole War, Andrew Jackson was again dispatched to the frontier, with orders to terminate the new conflict.14 Jackson soon marched into Spanish Florida, capturing a Spanish fort at St Marks whose weak Spanish garrison had been overrun by the Seminoles.15 American forces then pursued their attack further into Florida, occupying other Spanish forts, killing Seminoles and African-Americans, and executing two British men (Alexander Arbuthnot and Robert Arnbrister) charged with aiding and inciting the Seminoles.16 Jackson’s incursion sparked vigorous recriminations from Spain, declaring it “repugnant to the laws of nations” and asking for indemnification and denunciation of Jackson’s actions.17 The Spanish 157

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claimed Jackson’s fight against the Seminoles was a pretextual justification for a war of conquest. The US authorities had never, argued the Spanish, communicated complaints about Seminole conduct to the Spanish government — and the US unilateral military response was unwarranted.18 Secretary of State Adams’s response underscored vigorously the US view that the Seminoles and their allies had attacked US citizens from within Florida, and that Spain had failed in its obligations to suppress these acts. Adams argued “by the ordinary laws and usages of nations, the right of pursuing an enemy, who seeks refuge from actual conflict within a neutral territory, is incontestable.”19 In a later letter to the US Ambassador to Spain, Adams claimed that crossing the Florida frontier “was indispensable; for it was from beyond the line that the Indians made their murderous incursions within that of the United States.”20 Jackson’s capture of Spanish forts was not done in a spirit of hostility to Spain, but as a necessary measure of self-​ defense; giving notice that they should be restored whenever Spain should place commanders in a force there able and willing to fulfill the engagements of Spain towards the United States, or of restraining by force the Florida Indians from hostilities against their citizens.21

Similar themes arose in the US political debate. In the House of Representatives, congressmen reached for justifications grounded in Vattel’s writings. Some members invoked Vattel’s concept of a “right to security” and self-defence in urging that the United States was entitled to pursue the Indigenous belligerents even into neutral Florida.22 Representative Smyth of Virginia articulated this position forcefully: We have a right, by the law of nations, to destroy hostile savages residing within the territorial limits of a neighboring power, but not amenable to the civil laws. A neighbouring territory is not to become a seat for a safe asylum for banditti, who carry on against us predatory and murderous hostilities. You may not pursue a fugitive from justice, on the territory of neighboring nation . . . But, if you cannot otherwise deliver yourself from an imminent danger, 158

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you may enter into the territory of a neighboring power. In short, the government, being bound to preserve the people, has a right to all the means necessary to preserve the people, whatever they may be. Nothing can dispense with the obligation and nothing can destroy the right to the means. . . . The right of necessity, and the right of self-defense, are paramount to all of the rights claimed under the law of nations.23

In his November 1818 second annual message to Congress, President Monroe made similar points: The right of self defense never ceases. It is among the most sacred, and alike necessary to nations and to individuals, and whether the attack be made by Spain herself or by those who abuse her power, its obligation is not the less strong. . . . In pursuing these savages to an imaginary line in the woods it would have been the height of folly to have suffered that line to protect them. Had that been done the war could never cease. Even if the territory had been exclusively that of Spain and her power complete over it, we had a right by the law of nations to follow the enemy on it and to subdue him there. But the territory belonged, in a certain sense at least, to the savage enemy who inhabited it; the power of Spain had ceased to exist over it, and protection was sought under her title by those who had committed on our citizens hostilities which she was bound by treaty to have prevented, but had not the power to prevent. To have stopped at that line would have given new encouragement to these savages and new vigor to the whole combination existing there in the prosecution of all its pernicious purposes.24

The Spanish were likely unmoved by these arguments. But the Jackson invasion of Florida during the First Seminole War added a military aspect to the long-standing negotiations between Spain and the United States on the status of the territory. As would later be the case with the Caroline dispute, differing views regarding the legality of a military incursion were wrapped into broader negotiations. Spain ceded Florida to the United States in 1819.25 159

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A more modest repeat of the Florida matter recurred just the year before the Caroline affair, during the Texas revolution against Mexican rule. American soldiers advanced into contested Mexican territory, apparently in pursuit of Indigenous fighters, and ultimately occupied parts of it. These actions ignited a flurry of letters between the Mexican ambassador and Secretary of State John Forsyth. In those, Forsyth assured the Mexican representative that the troops would act only in response to the necessity of protecting US settlements from attack, and not to mount a hostile or permanent occupation of Mexican territory. This explanation did not satisfy the ambassador, who ultimately withdrew from the United States after penning a lengthy protest distributed among the diplomatic corps and published in American newspapers.26 The resulting rupture in American-Mexican relations was, in the end, overtaken by events in Texas, as that territory briefly became an independent state. But Forsyth complained to the US ambassador to Mexico later in 1836 that the Mexican government’s “theory” by which it critiqued the American military presence had been untenable. It meant that US citizens were “to be exposed to massacre, their property to destruction, and the whole frontier to be laid waste by those savages Mexico was bound to control.” He instructed his envoy to communicate to the Mexican government that US conduct had been consistent with “principles of the law of nations entirely distinct from those on which war is justified — upon the immutable principles of self-defence — upon principles which justify decisive measures of precaution to prevent irreparable evil to our own or to a neighboring people.”27 Several decades later, those debating the Caroline remembered the US position in Florida in 1818 and, later, Mexico. While still a private citizen at the outset of the Caroline matter, Webster — then in England — reminded US Ambassador Andrew Stevenson of the First Seminole War.28 Senator Henry Clay also noted the analogy, although he regarded this US conduct along the southern frontier as “unhappy examples” imprudent to repeat.29 His colleague Senator Buchanan rejected any analogy to Jackson’s 1818 Florida incursions. Those only occurred, the senator argued, when the “Spanish 160

Chapter 20: Self-Defence and the First Seminole War, 1817–1818

authorities in Florida honestly confessed that they had not sufficient power to restrain their Indians from crossing our frontier and committing depredations on our territory,” necessitating an exercise by the United States of the right to self-preservation. And in any event, “the territory of the Seminoles was wild and unsettled, and was but nominally under the jurisdiction of Spain.” Any comparison to New York could not be sustained, Buchanan urged.30 Other congressional figures were less certain. Pointing to Jackson’s 1818 Florida incursions, Mr Rhett of South Carolina asked the House of Representatives, “[w]ere we not now in a similar situation with Spain? Had we not received, cherished and encouraged refugees from Canada, and suffered them to muster men and arms within our own territory[?]” His colleague, Mr Menefee, invoked the situation with Mexico to argue that the United States had been guilty of gross breaches of the rules of neutrality.31 For their part, British and Canadians officials — no doubt still keenly remembering the executions of Arbuthnot and Arnbrister in 1818 — were happy to point to the Florida precedent in defending Commander Drew’s Caroline action. In 1839, the Upper Canada House of Assembly argued there was nothing illegal about the Caroline raid, “and if precedent were necessary to controvert it, there is no country whose history affords more striking examples in point than that of the United States.”32 The Assembly committee pointed to the circumstances of the First Seminole War, and reproduced President Monroe’s justification of it as a “right of self-defence.” As with Spain in 1818, so too with the United States in 1837: the territorial government lacked “the power or the inclination, it matters not which, to restrain their citizens from making war.” In those circumstances, the Canadians had been comparatively restrained: they “had an undoubted right, not only to follow the steam-boat, Caroline, into the territory of the United States and destroy her there, but to enter into that country and destroy the preparations there making for their destruction, if it were seen that the American government either could not or would not do so themselves.”33 Later, in the McLeod dispute, British Ambassador Fox in Washington told Secretary of State Forsyth that the Caroline raid was an act 161

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of self-defence “justified by the same motives and principles, which, upon similar and well-known occasions, have governed the conduct of illustrious officers of the United States.”34 Palmerston was also attuned to the American record. He complained to US Ambassador Stevenson in 1839 that “offenders of the worst description are still allowed to congregate on the American territory, and to sally forth from thence, in order to commit within the British Borders the most atrocious crimes; and that no adequate steps are taken by the United States’ Authorities to prevent or to punish such delinquencies.”35 He then noted the British would have recourse to whichever measures were necessary to protect their subjects, in keeping with the doctrine on “international Right” laid down by President Monroe in his 1818 statements to Congress on the conflict in Florida. Other British parliamentarians also raised the US precedent.36 And in the McLeod trial itself, the Canadian’s lawyers argued that trying McLeod was equivalent to the Spanish prosecuting American soldiers for following General Jackson’s orders in Florida.37 Not every Briton considered the earlier American conduct decisive in deciding the merits of the Caroline raid. The London Examiner thought the precedent irrelevant: “[I]f I knock a man down, and he brings an action against me, I cannot defend myself by showing that he once knocked down somebody else.”38 This line of reasoning was attractive to the distinguished jurist Henry Wheaton, writing from his perch as US ambassador to Germany.39 Still, the Examiner also noted (in a nod to the emerging positivist temper of the times) that international law “rests on a series of precedents.”40 And the 1818 Florida adventure did little to fortify the American position of 1837 to 1842 — a point the Examiner’s competitors were quick to make.41 Even the Examiner concluded the Americans had best repudiate their Florida conduct, or somehow distinguish it. This would be difficult. As the Examiner stated, “we suspect that of the two seizures, the seizure of the Caroline is the most easily defensible.”42

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Chapter 21

The Merits of the Case I would earnestly entreat any impartial person to apply this law to the facts . . . and then to pronounce, whether when Navy Island was occupied by . . . rebels, possessed of American artillery, fired day and night upon the British frontier . . . supplied with food and armed by an American steamer, the destruction of that steamer . . . was not an act of self-defence. — Robert Joseph Phillimore (1842)1

I

return now to the question posed at the outset of this part: Who was right in the Caroline dispute? Contemporaries were divided, often (although not always) on national lines, and some current scholarly opinion sometimes doubts the lawfulness of the Canadian raid. One late twentieth-century historian concluded that the Caroline raid “hardly met the requirements of self-defence set forth in Webster’s note of April 24, 1841,”2 that is: necessity (“overwhelming, leaving no choice of means”), proportionality (“nothing unreasonable or excessive” in relation to the necessity of defence), and imminence (“no moment for deliberation”). But many scholars, then and now, believe the Canadians met these three requirements.3 In fact, it is hard to find real fault with the Canadian conduct under Webster’s test or the other standards applicable in the era. Surely the Canadians could have hoped for American government intervention — but the facts suggested the US authorities were unable to suppress the insurgents. The Canadians could have awaited the Caroline’s next passage to Canadian waters before attacking it — this, in fact, would have eliminated the need to contemplate the law of nations at all. In that era, the Canadian militia 163

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could exercise force within its own territory, unimpeded by any real international legal constraint. But that strategy would have produced a sizable clash and almost certainly more casualties on both sides. And with small-arms fire and shelling from Navy Island, the outcome would have been uncertain. The Canadians could be condemned for their nighttime raiding strategy only if self-defence and the rules of necessity obliged delaying their response to their own tactically most dangerous moment. And the Canadians could be condemned only if the Caroline’s conduct was considered in isolation. In a fact often missed in applications of the Caroline discussed in subsequent chapters, the insurgent attack was not imminent. Instead, it was underway, and had been for weeks. The necessity of self-defence had been triggered by the occupation of Canada’s Navy Island and the shelling of Chippawa. There was no way to displace the several hundred insurgents on Navy Island other than by force — they were not about to cease and desist. Nor without resistance could they be stopped from reinforcing themselves or further encroaching on Canada. Given the clear incapacity of the American government, the Canadians had no choice but to respond to an attack. That necessity was immediate by the standards set by the jurists of the period, as the only other option was to passively accept the bombardment, watch insurgent numbers grow, and await a further insurgent advance. The Canadians were, therefore, resisting an ongoing attack. And destroying the Caroline was a narrow, proportional act, done to stave off that peril. In sum, to treat the raid as excessive would be like concluding the British could exercise self-defence against the Germans in the Second World War where the Germans occupied the British Channel Islands, but the British became aggressors if they bombed the German supply ships in occupied French harbours. That view would be impossible to sustain. In the end, though, it did not really matter who was right by 1842. In the Caroline dispute, Webster’s test was devised to solve a specific political dilemma, not to decide justice.4 Webster had a strong incentive to concede as little as possible to the British, given the political 164

Chapter 21: The Merits of the Case

notoriety of the Caroline raid. But both Webster and his British interlocutors also had incentives to constrain the circumstances in which force would spark outright war between their countries. Key to this was avoiding a broad self-preservation concept,5 such as was deployed at Copenhagen in 1807. But in addressing the question of proper defensive force on neutral territory, Webster could not easily ignore recent American practice in Florida and Mexico, where neutrality had given way to necessity. Therefore, Webster reached for the same term used by the British throughout the dispute: self-defence. He would quibble over its application to the Caroline and as a countervail, he extracted a modest apology from Ashburton. But in conceding self-defence as an appropriate test, Webster resiled from the absolutist view of international law and neutrality advanced by other US protagonists, including his predecessor as secretary of state and his own president. Webster’s final formula for self-defence represented a Goldilocks point: not too hot, but not too cold; constraining of force, but not too constraining. His words constructed a three-legged stool for the application of self-defence: necessity, proportionality, and imminence.6 But contrary to some views, these concepts were not pulled from the ether. They were part of a shared Western intellectual tradition, and indeed, Robert Joseph Phillimore advanced similar views on the British side. Webster is remembered for his pithy phrasing, but the criteria he advanced had clear antecedents in the works of Cicero, Aquinas, Grotius, Pufendorf, and Vattel.7 In the spirit of the day, the views of these great jurists were not always based on state practices. They reflected normative expectations more than empirical observation. Even Vattel’s treatise, viewed as more practically inclined than those of his predecessors, revealed no “clear line between the actual law as exhibited in custom and the law as the author conceived it should be.”8 Put another way, Webster’s formula was built mostly on philosophy, not state practice,9 and was a solution to a specific political problem. And yet with time, his three-legged stool came also to support the modern concept of self-defence, responsive to a host of dramatically different political problems in a period where state practice 165

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was regarded as the only source of international law. As one twentyfirst-century jurist argues, the three conditions of the modern law of self-defence “are distilled from the yardsticks set out by the American Secretary of State, [Daniel] Webster, more than 160 years ago.”10 How that happened is the subject of the next part of this book.

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Part IV

The Idea of the Caroline

Chapter 22

Freedom to War The obedience which is paid to law must be a willing obedience, and when a state has taken up arms unjustly it is useless to expect it to acquiesce in the imposition of penalties for its act. International law has consequently no alternative but to accept war, independently of the justice of its origin. — William Hall (1895)1

I

n the decades after the Caroline, war was simply another instrument of statecraft, not an event to be reconciled (however imperfectly) with the niceties of just cause. The intellectual spirit of the era favoured laissez-faire “positivism” — the notion that law came only from human conduct and not from a natural, universal code. International law stemmed from treaties and the customary practices of states, nothing more. Once a secondary source of principle for earlier jurists, this state-derived “law of nations” now almost completely eclipsed the natural law legacy of the ancient world.2 Applied to war, positivist international law did codify some expectations about the conduct of hostilities, such as the treatment of wounded and prisoners of war.3 These were what are today called the jus in bello rules of international law: the standards governing the actual conduct of war, once begun. But in the long century after the Caroline, international law had no role in evaluating the choice to embark on war in the first place; what today lawyers call jus ad bellum. States enjoyed an inherent competence de guerre: a freedom to war. International lawyers from the mid-nineteenth century to the First World War confined themselves to debates about the precise 169

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conditions which gave rise to a state of war, without evaluating its causes,4 while also focusing on the interests of neutral states confronted with the clash of belligerents.5 They “treated war not as an instrument but as an evil which, in a disorganized world, could not be controlled.”6 Earlier efforts to distinguish lawful from unlawful wars had no place. No primacy was given, for instance, to defensive wars.7 This is not to say that positivist thinking was inherently militaristic — ​ but it included nothing that could deter those state leaders who were.8 As one leading nineteenth-century jurist put it, international law had “no alternative but to accept war, independent of the justice of its origin, as a relation which the parties to it may set up if they choose and to busy itself only in regulating the effects of the relation.”9 This vision did not appear suddenly. It had antecedents in the writings of philosopher Thomas Hobbes (1588–1679).10 Hobbes famously warned of a state of nature in which life was “solitary, poor, nasty, brutish, and short,”11 and urged the primacy of self-​preservation; indeed, he viewed it as the only fundamental natural right.12 In a Hobbesian universe, war was not conducted pursuant to shared values, but was instead a merciless competition for survival between sovereign states. The regulation of that contest required political maneuverings and concretized agreements, not the pious dictates of classically trained jurists.13 Still, a slender thread of that earlier natural law theory persisted in the rules said to govern forms of military force viewed as not reaching outright war, especially in those textbooks authored nearer the beginning of the century and reissued in subsequent editions.14 War may have been a matter of high politics and policy, but it was expensive, traumatic, unpredictable, and, increasingly, out of step with the emerging ethos of the period. Moreover, a state of war between belligerents could only fray commercial relations in an increasingly interdependent world economy. And some states, such as the United States and France, had constitutional rules complicating resort to war, but which did not apply to lesser uses of force. For these reasons, states and international lawyers reached for a middle way between perfect peace and a state of war,15 building on the earlier tradition of “imperfect wars.” This was violent state conduct done as 170

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“measures short of war” during a time of peace.16 Such actions were limited in scope, and less likely to produce the calamitous rupture in diplomatic relations precluding negotiated outcomes.17 Threading this awkward path between war and peace required substantial legal parsing, and the nineteenth century produced a complicated proliferation of forceful actions undertaken for acceptable objectives in a time of peace. In this manner, an aspect of natural law theory persisted, now reduced to justifying lesser violence rather than full war.18 These grounds included various forms of humanitarian interventions, reprisals involving force (limited, supposedly, to vindicating a right), and a broad species of conduct justified by the necessity of “self-preservation.”19 Reprisals — sometimes taking the form of “gunboat diplomacy” — attracted attention and scrutiny by jurists, intent on the doubtful task of teasing them apart from war.20 These were punitive (and not defensive) measures, designed to extract concessions for illegal conduct.21 They would not outlast the twentieth century, at least as a matter of law. States occasionally justified force as responsive to some human tragedy — humanitarian intervention — during the nineteenth century, and the concept recurs in today’s discussions of armed conflict. But it sits uneasily with the primacy that positivist international law gave to sovereignty and non-intervention in the affairs of other states.22 In consequence, it is poorly represented in the current framework of international law. In comparison, the self-preservation concept, though narrowed considerably, has proven more lasting, and bridges the gap between the Caroline and the present day. As with its earlier antecedents, it is difficult to find precision in the concept of “self-preservation” described by nineteenth- and early twentieth-century jurists. Its precursors clearly stemmed from natural law, more than the positivist law of nations. In the 1893 Bering Sea Arbitration, for instance, British lawyers rejected a strongly naturalist American view of international law: international law, the British argued, was “a body of derivative principles and concrete rules, formed by the action and reaction on each other of custom, or moral feeling, and of convenience.” But they conceded positivism 171

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had not completely swept natural law from the field; a state could exercise self-preservation (self-protection) “without reference to whether what it does falls within the limits of a practice which has received the consent of nations.”23 What self-preservation meant, however, was unclear.24 It had been invoked in both the Copenhagen (1807) and Caroline matters. But by the 1850s, the reach of “self-preservation” had slowly increased, in indefinite manners, in part because states were inclined to seek legitimation for their conflicts even in a period in which outright war was unlimited by law.25 Textbook writers focused on self-preservation as a reflection of state sovereignty.26 Robert Joseph Phillimore, whose influence was noted in prior chapters and who is discussed further below, called it the “first law of nations, as it is of individuals.” A state incapable of repelling aggression “is wanting in its principal duty to the members of which it is composed.”27 In the hands of some authors, self-preservation seemed geared to maintaining a balance of state power28 and maximizing national welfare.29 Other jurists — especially as the nineteenth century progressed — ​adopted a slightly less ambitious position, viewing self-​ preservation as justification for states building defences, armies, and navies on their territories or the high seas.30 What precisely more it allowed was a matter of contention. In its most developed form, it was equated with self-protection.31 In the broadest sense, this was a right of armed intervention in another state stemming from the necessity of removing a threatening and immediate danger,32 with necessity constituting (in some visions) a rejection of law.33 In these instances, a right to self-preservation could arise in the absence of an actual attack, as with the 1807 Copenhagen campaign.34 A much-cited expression of self-preservation, halfway between that 1807 bombardment and the Caroline arose in 1873. An American ship, the Virginius, was en route from Jamaica to Cuba in the service of Cuban insurgents in conflict with Spain. The vessel was captured in international waters by a Spanish warship. The Spanish charged the crew and passengers with piracy and aid to the insurrection. It then executed many of them, including British nationals. The British sought compensation from the Spanish for this excessive 172

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treatment of the captured prisoners. But they agreed that the Spanish seizure of the ship was done in “self-defence” in “expectation of instant damage.”35 These examples gave self-preservation (and to the extent the terms were conflated, self-defence) a broad sweep, unmoored to a truly immediate danger. In his treatise published at the end of the US Civil War, American Army General HW Halleck warned “impending and contingent danger” has frequently been used as an excuse — and less a justifiable reason — for foreign interference: “And instead of preserving peace, such unlawful interference has frequently been the cause of wars the most cruel and bloody that have ever stained the annals of history.”36 More recent authors made similar comments: used capriciously, self-preservation covered aggression committed by a stronger state against a weaker nation because the greater power sought to “improve its opportunities of preserving its existence regardless of the rights of the weaker state.”37 Perhaps for these reasons, other jurists used self-preservation more narrowly,38 reaching for examples and precedents defining when defensive force was proper. Events on the Niagara River in 1837 were a recurring favourite,39 at least among jurists in the Anglo-American world. In the words of one modern scholar, if the nineteenth century “contributed nothing significant in the way of doctrine on the subject of self-defence, it did provide an incident in state practice that remains in the everyday repertoire of international lawyers to the present day.”40 It was the “decisive point” in narrowing self-preservation.41 This did not, however, happen right away. It is not possible to say definitively how the details of events on the Niagara frontier came to the attention of jurists. Authors on both sides of the Atlantic clearly had access to Webster’s papers and some of the correspondence in the dispute.42 But much credit for preserving the story of the Caroline rests with Robert Joseph Phillimore (Sir Robert as of 1862), the author of the lengthy 1842 missive to Lord Ashburton arguing the British case.43 He would also later serve as a Queen’s Advocate and Admiralty advocate general, providing advice to the Foreign Office on international law.44 As noted previously, Phillimore 173

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may have had more reason than most to be attentive to the Caroline dispute — his uncle, John Phillimore, was Andrew Drew’s great patron. Phillimore constituted a transitional figure in international law, one still attentive to the writings of the great seventeenth- and eighteenth-century jurists, and not strictly inclined to the positivist temper of the times.45 Phillimore addressed the Caroline dispute in his influential international law treatise, a massive four volume work published between 1854 and 1861 and updated in two more editions through to 1889.46 Phillimore’s book was regularly cited during the nineteenth century, and is the closest thing to a scholarly “index case” in the Caroline’s spread.47 Notably, in most of the learned discussions of the nineteenth century, principles derived from the Caroline remained moored to the incident’s facts, and were viewed as a unique expression of one form of self-preservation: an act of defence against an insurgency operating from a neutral state that was unable or unwilling to suppress it. Phillimore, pointing to the Caroline, argued that self-preservation allowed a state attacked by insurgents based in another territory to cross the frontier and take “necessary means” for its safety, confronted with the delinquency of that neighbouring state in suppressing the source of the danger.48 This view was shared by later British jurists and some American writers, who recognized how it violated state sovereignty. In keeping with the burgeoning field of “measures short of war,” these jurists were anxious to distinguish this limited invasion of sovereign territory from more open-ended war. And so, in describing the proper standard, they echoed, and sometimes cited, Webster’s famous April 1841 formula: a “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” in which the defender “did nothing unreasonable or excessive.” In doing so, they agreed that this form of extraterritorial self-defence was limited to a great and immediate danger “beyond the control of the government of the country which is used by invaders”49 (or where that government was “unable or unwilling”).50 And it was restricted in scope to acts “which are barely necessary for the purpose.”51 And so, while jurists occasionally complained that Webster’s formula had 174

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been expressed with “unnecessary rigour of language,” it became a useful shorthand test for “self-protective action in places beyond the territory of a State in time of peace.”52 This was not a universal position, and like the original American view in the Caroline dispute, some authors advanced a more absolute sovereignty. In direct opposition to Phillimore, HW Halleck called the Caroline scenario one of belligerent hostility, in violation of territorial rights, and not “the pacific right of self-defence.”53 Any invasion of territory was an act of hostility that could be repelled by force by the invaded state. This right to repel could not be reconciled with the existence of an opposing right to invade in self-defence, exercised by an injured state. That did not mean the injured state could not act — recall that this was a period in which war was perfectly lawful. Rather, Halleck objected to the fiction that the invasion was something other than a war.54 He also chided Phillimore for relying on the Caroline, an incident “in which his own government apologized for its violation of our territorial jurisdiction.”55 Later writers in turn disagreed with Halleck, noting that motives matter. The territorial violation in the Caroline was done without hostile intention to the territorial state, with the express intent of forestalling an event that could lead to a larger war.56 The intervention was at best a “sentimental injury to the State that suffers from” it.57 One American writer agreed that the invaded state was free to treat any violation of its territory as an act of war. But, urged this author, it was far wiser to regard “preventive measures rather as friendly than as hostile acts.”58 In a similar vein, others stated that an act that would otherwise be unlawful in times of peace was made proper where it had not interfered “with rights or political independence or without impairment of the territorial integrity” of the United States.59 The bottom line was that (these doctrinal disagreements notwithstanding), for much of the first century after the raid, the Caroline stood as an example of “intervention in self-defence” against marauders done as “an exception to the general rule of international law that the state must abstain from the use of force on foreign territory.”60 That Caroline-style event was just one part of a broader 175

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concept of self-preservation. Self-preservation was, in turn, an intellectual artifice designed to allow state violence in times of peace, during a period in which war was legal, although also destructive. But lost in many of the nineteenth-century treatments of the Caroline were certain core facts. For one thing, the significance of the British apology was overstated by Halleck — as discussed earlier in this book, the British never abandoned their legal position and Webster resiled from the more absolutist view on neutrality advanced by other US protagonists.61 Second, in a seeming example of an echo chamber, writers relying on one another often misstated or ignored a key detail: they imagined that the insurgents were attacking Canada from within the United States.62 The fact that before the Caroline raid, the insurgents had invaded and occupied a portion of Canada — Navy Island — from which they bombarded the mainland and plotted a larger invasion was lost in much nineteenth- and early twentieth-century discussion.63 Often, so too was the core concern about the incapacity of the United States to control its frontier. Influential British jurist Lassa Oppenheim fell prey to precisely this pattern. His 1905 account demonstrated just how distorted the facts had become in some tellings: Insurgents had “got hold of an island in the river Niagara, on the territory of the United States” and equipped the Caroline “for the purpose of crossing into Canadian territory” to help the insurgents. Informed of the “imminent danger,” the British entered American territory and destroyed the Caroline. This violation of territory prompted an American complaint. Oppenheim’s mistake in believing Navy Island in the United States was corrected by the 1920 edition of the treatise.64 But in both the original and updated version, the Caroline was all about an emergency, not a response to an ongoing attack originating in a neutral state unable or unwilling to control its territory: Britain could prove that its act was “necessary in self-preservation, since there was not sufficient time to prevent the imminent invasion of her territory through application to the United States Government.”65

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For the nineteenth-century jurists living in a period generally permissive of war, the precise nature of the danger to Canada was probably irrelevant. In some respects, the argument justifying invasion of a foreign territory was easier if the entire injury was contained in the territory of that neighbour. But the sort of peril confronting Canada was an important fact in assessing the imminence of the danger — here, the consequence of US inability to control the frontier was much more than merely threatened. The Caroline raid was not (just) a case of a battered insurgency taking shelter in a neutral nation, to regroup and rearm; it was a response to an ongoing invasion, occupation, and shelling. The simplification of the Caroline’s facts would have consequences. Versions of the affair like that of Oppenheim would come to dramatically affect the incident’s significance for the twentieth century.

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Banning War It was with the Caroline case that self-defence was changed from a political excuse to a legal doctrine. — Robert Y Jennings (1938)1

A

t some point, the Caroline incident and Webster’s formula went from an example of self-defence, embedded in a broader, nineteenth-century concept of self-preservation, to the example of self-defence in international law, with no broader right of self-​ preservation. How this happened requires a tour of state practice in the early twentieth century. Self-defence remained a minor sideshow in an era where war was a legal enterprise — a political excuse for a form of force that, when scaled up to a full war, was fully legal anyway.2 It could matter only in a legal system that labelled every exercise of force wrongful, unless pigeonholed into discrete legal categories.3 Put another way, self-defence as a justification for force only really became consequential when war itself became wrong, and that process took shape in the 1920s, with the post–First World War settlement. One key outcome of the Versailles settlement that ended the First World War in 1919 was the League of Nations. The League is only dimly remembered today. In her 2003 history of the Versailles settlement, Margaret MacMillan reports that “only a handful of historians still bother to study” it: “Its archives, 179

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with their wealth of materials, are largely unvisited.” More than that, this intergovernmental organization — one of the first to deserve that designation — is now widely regarded as a failure. In MacMillan’s words, its “very name evokes images of earnest bureaucrats, fuzzy liberal supporters, futile resolutions, unproductive fact-finding missions and, above all, failure: Manchuria in 1931, Ethiopia in 1935 and, most catastrophic of all, the outbreak of the Second World War a mere twenty years after the first one ended.”4 But whatever the inadequacies of the League as defender of collective security, the treaty creating it — the Covenant of the League of Nations (Covenant) — encapsulated a new suspicion about war. And indeed, even with many of these famous failures of the 1930s, debates turned on concepts of self-defence because of the way the concept of war was shaped by the League and other inter-war instruments. By the 1920s, the nineteenth-century laissez-faire attitude toward war had evaporated, not just because of the horrors of the First World War, but also in response to changing attitudes in the European and American worlds during the latter part of the nineteenth century. In that period, prosperity was twinned with an impression of progress — of a “civilizing” mission — and a growing middle class attracted to a burgeoning peace movement in increasingly democratic societies.5 By 1900, there were 425 peace organizations, mostly in the European world, and an annual universal peace conference beginning in 1889, eventually institutionalized as the Inter-Parliamentary Union. Between 1899 and 1907, states negotiated at the Hague Conferences,6 developing principles governing the actual conduct of war that endure to today, and during this period, states increasingly turned to pacific means of resolving disputes. In 1872, a long-standing US grievance against Britain for the construction of warships for the Confederacy during the Civil War was settled by peaceful arbitration, one that became a benchmark for adjudicated settlement. (The arbitral “high commission” awarded the United States $15.5 million in compensation, a sum significantly less than the transfer of Canada being sought by some Americans.)7 Thereafter, by 1914, states had entered 194 treaties with provisions for peaceful arbitration. Indeed, the Caroline case 180

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made a cameo appearance in the 1893 US-British arbitration over fur seal harvesting rights in the Bering Strait. (There, in an eccentric argument that attracted no support from the tribunal, the United States had justified its seizure of Canadian vessels outside of US territorial waters by invoking Webster’s formula for self-defence, now extended to protecting the US national interest in the seal herd.)8 In sum, the “social conditions” that even Carl von Clausewitz had recognized affected war were changing even before the Great War, whatever the initial enthusiasm with which that conflict’s outbreak in 1914 was greeted. That war shook Western civilization, and was billed as the “war that will end war” by novelist HG Wells.9 To accomplish this objective in the post-war settlement, states did not revert entirely to prior moralistic, naturalist concepts of “just war” but instead reached for legal tools designed to contain the “lawfulness” of war.10 A first effort came with the League of Nations Covenant, a short international treaty that, for US President Woodrow Wilson, was to be the pinnacle of the post-war peace process.11 Wilson and a truculent Senate never saw eye-to-eye on American participation in the League — the United States was fated never to become a member of it. But the Covenant still constituted a novel and influential departure from prior peace settlements, such as that which ended the Napoleonic Wars at the Congress of Vienna in 1815. The 1919 treaty established a permanent forum: a council and assembly, supported by a secretariat. A separate treaty established a Permanent Court of International Justice (PCIJ), the first standing international arbitral body and the direct predecessor of today’s International Court of Justice. And in another departure from the past, the League Covenant sought to regulate war. War, under the new League of Nations Covenant, remained legal. But no longer was it a mere duel between sovereign nations — now it graduated to a matter of international concern, affecting the community of nations.12 In so doing, the Covenant advanced a view of the world in which community solidarity replaced the Hobbesian preoccupation with unregulated, individual self-preservation.13 The Covenant prioritized peaceful settlement of disputes. In its key 181

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features, it converted war into a lesser tool of policy available only as self-help where other means of dispute resolution were unavailable, or had already been tried. In other words, it put procedural obstacles in the way of lawful war, the violation of which authorized a collective response in the form of sanctions by the other members.14 But for all its ambition, the Covenant was a flawed instrument, even in some of its more demanding requirements. For instance, members of the League undertook “to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League” and in the event of “any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.”15 The effect of this unartfully drafted provision was to outlaw aggression,16 a famously murky term. Diplomats of the day — and for some time after — resisted a precise definition of the concept. As the British foreign secretary argued in 1927, defining aggression would be “a trap for the innocent and a sign-post for the guilty.”17 Still, the concept was described expansively in some regional treaties of the period to include attacks, blockades, and support of armed bands in the territory of another state.18 In the League context, the practical application of the concept was narrower, tied to wars of territorial aggrandizement, and not as a bar to other forms of force.19 But even where aggression might exist, the Covenant anti-aggression proviso was difficult to reconcile with the provisions in the treaty that made war lawful, if done following exhaustion of the League’s peaceful dispute settlement procedures.20 Moreover, some states claimed that classic measures short of war, such as reprisals, fell into a “gap” and entirely escaped the League’s rules.21 This was an unhappy view, since the distinction between a bombardment done as a reprisal as opposed to outright war was never particularly tenable. Unfortunately, the League itself left the matter unresolved. In 1923, Italy bombarded a Greek garrison on Greek Corfu, without complying with the Covenant but with no intent of annexation. This was an armed reprisal retaliating for the murder of members of an Italian boundary delegation on the island and the subsequent Greek failure to satisfy the demanded 182

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reparations.22 When tasked to review this incident, the League of Nations Commission of Jurists concluded (unhelpfully) that measures short of war “may or may not” fall within the Covenant’s procedural rules, and that question was to be decided by the League Council on the facts of each case.23 Jurists defended or condemned these gaps in the Covenant, and debated their scope and existence.24 In the end, self-defence was the single indisputable, remaining legal way to circumvent completely the League rules.25 Self-defence was not neatly encapsulated in the League Covenant — in keeping with its long history as a natural right, it was viewed as inherent and in no need of emphatic codification. Nor was there true urgency to carefully define an exception to something (in this case, war) that was not outright prohibited. That posed, then, the same dilemma unresolved by the jurists of the nineteenth century: how pliable was the concept of self-defence, long conflated with a broad vision of self-preservation? Jurists and then states of the early twentieth century were inclined to narrow self-preservation’s wide aperture, even during the Great War. In 1914, Germany had justified its invasion of Luxembourg and Belgium, in violation of their neutrality, as an effort to outflank France. In German minds, this existential need produced “a state of necessity, and necessity knows no law.” This argument could be accommodated by the sweeping nineteenth-century concept of self-​ preservation. But Germany’s position was roundly condemned in 1915 by Coleman Phillipson, an English lawyer schooled in early legal thought who would go on to edit a leading inter-war international law textbook.26 Reflecting the temper of the times, Phillipson stated that Germany’s concept of necessity was inseparably connected to that state’s absolutism and militarism, an especially Teutonic quality. But he also pointed to the Caroline incident in noting that self-​ defence was the proper standard, one that had to meet Webster’s formula. And that would have happened for Germany only if French troops already advanced into Belgium, and Belgium was incapable of expelling these invaders.27 Possibly because of this 1914 experience, other instruments in the inter-war period took a more definite line on the reach of self-defence 183

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than did the Covenant. One notable example was the 1925 Locarno Treaties between several European powers guaranteeing the borders between Germany and its French and Belgian neighbours. The parties committed not just to renouncing “war” in their relationship, but also to abandoning “attack” and “invasion.”28 A violation of this guarantee was to trigger a collective security response from the state parties, one that required recourse to the League of Nations. Still, there were exceptions, tied to self-defence: this League procedural requirement need not be applied in face of a “flagrant violation,” where the victim state suffered an “unprovoked act of aggression.” The effect of this language of “aggression,” “attack,” and “invasion” was to qualify, in theory, the circumstances in which self-defence was available.29 The Covenant and Locarno Treaties (and a host of other smaller conventions regulating state conflict) were supplemented by the 1928 Pact of Paris, officially titled the “General Treaty for the Renunciation of War as an Instrument of National Policy.” This title constituted a clever reversal of Carl von Clausewitz’s famous 1832 claim of war as a “continuation of policy by other means.” But the double entendre produced a lengthy official title, and the 500-word instrument is better known as the Kellogg-Briand Pact in honour of US Secretary of State Frank B Kellogg and occasional French prime minister and then foreign minister Aristide Briand. Both men would receive Nobel Peace Prizes — Briand before the Pact came into being in 1926 and Kellogg in 1929 because of it. The genesis of the Pact may be traced, however, to Salmon Levinson, a Chicago corporate lawyer, and James T Shotwell, a Columbia University professor, and their separate campaigns favouring the “outlawry” of war and the incorporation of the United States into the post–First World War international legal order.30 In its particulars, the Pact extended the suspicion of war in the League Covenant to other states who had not joined the League of Nations — not least, the United States.31 But it did more than this: it also closed the “gaps” of the Covenant, barring war where the Covenant only imposed procedural prerequisites.32 Outlawry was a

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consequential reversal in the idea of war. War, it would turn out in the 1930s, would not be expelled with the stroke of a pen. Even at the time of its creation, the treaty attracted derision for its starry-eyed idealism.33 But the Pact built on the League of Nations Covenant to make a conflict a clear matter of legal concern to all states connected to the treaty. Any act of war anywhere was an injury to each state party.34 In the Pact, the parties condemned “recourse to war for the solution of international controversies” and renounced war as “an instrument of national policy.” More than simply renouncing war, the Pact also committed states to seek peaceful resolution of “all disputes or conflicts of whatever nature.” There was spirited debate about what these terms meant, and what exactly states had committed to in the Pact.35 In the eyes of some jurists, these provisions closed the door on most use of force done as “measures short of war.” Self-help such as a forceful reprisal might not be war in the complicated nomenclature of the nineteenth century, but it was a dispute or conflict, and it was not peaceful resolution.36 This broad interpretation of the Pact was not universally shared.37 But if force was outlawed, regardless of whether undertaken in an outright war, the concept of war no longer mattered much. In this manner, the Pact began a process — culminating 1945 in the United Nations Charter — ​of expelling the concept of war as a meaningful legal expression.38 Likewise, the Pact provoked a renewed focus on self-defence with ripples to our day — here, the discussion was back to the future as an obscure event on the Niagara River in 1837 drifted back into focus. As with the League of Nations Covenant, self-defence was not mentioned in the Pact — again, it was understood to stand apart as an inherent right.39 Answering a French proposal advising inclusion of self-​defence in the treaty, US Secretary of State Kellogg stated that self-​defence was “inherent in every sovereign state and is implicit in every treaty.” In a view widely shared by other states,40 Kellogg claimed that “every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to

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war in self-defence.”41 And as with aggression, diplomats regarded more precision as risky; to include this “inalienable right” in the treaty, Kellogg argued, would oblige the definition of a concept best left alone: “Inasmuch as no treaty provision can add to the natural right of self-defence, it is not in the interest of peace that a treaty should stipulate a juristic conception of self-defence since it is far too easy for the unscrupulous to mold events to accord with an agreed definition.”42 Of course, the reverse was also true: the absence of a definition left unscrupulous states with a free hand to shape self-defence, unmoored to any shared understanding. So, while states were unprepared to provide precision by treaty, statesmen and jurists reached for other sources. By this point, though, it was not possible to frame the debate around Grotius and Vattel and other naturalist-influenced writings of the sixteenth through eighteenth centuries, derived from reason and ancient practice. During the time of the Caroline, jurists and statesmen were still comfortable attributing legal significance to these sources. By the 1920s, after a century of positivist ascendancy, that time had long since passed. By the inter-war period, the sources of international law were commonly limited to those found in the treaty creating the new PCIJ. The PCIJ was entitled to apply a listed range of sources in adjudicating international disputes. Among these, of course, were treaties, and the court could look to the “teachings of the most highly qualified publicists,” a nod to international law’s past. But these teachings were only a “subsidiary means for the determination of rules of law.” They could not constitute those rules. The court could also look to “general principles of law recognized by civilized nations,” an ambiguous concept rarely viewed as a serious source of international law. Finally, the court could apply “international custom, as evidence of a general practice accepted as law.”43 This source — customary international law — is the successor to the “usages” concept of earlier periods. To exist, the right to self-defence had to stem from one of these sources.44 Since the League Covenant and the Kellogg-Briand Pact declined to create a strong treaty basis for it, the most plausible

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candidate for self-defence was customary international law. The trouble with customary international law, however, was (and remains) its uncertain nature. The doctrine is easy enough to state: customary international law stems from a sufficiently consistent and universal state practice, done by states in expectation that this conduct is obligatory (or, sometimes in practice, permitted). An older definition, perhaps more honest than today’s descriptions, describes customary law flowing from the “free practice” of states, then replicated as “other nations are led from motives of convenience or from the pressure of moral compulsion by their stronger neighbors to adopt the same practice.” At this last stage, “the particular rule has obtained sufficient standing to be quoted as a precedent for guidance in subsequent cases.”45 This 1918 description still rings true. But the synthesis masks much. It suggests that customary law depends on state conduct — ​ and to that degree, is built on state consent. But measuring that conduct depends on an empirical assessment of states — an arduous and vanishingly infrequent exercise, and doctrine in this area leaves open the issue of “how consistent” and “how universal” the practice must be before it crystalizes into custom.46 And in fact, custom sometimes emerges when a single powerful state, or group of states, asserts novel rights in the face of opposition, “until at last the inherent justice of the claim, aided by the power of the states supporting it, has come to obtain general acceptance.”47 The result is substantial suspension of disbelief among jurists: whatever the doctrine might state, the reality of customary international law is different. That realpolitik is easily stated: something is customary when enough people of influence believe it is, and act on that belief. Because of this political reality, customary international law tends to be fertile ground for debates as to its content, with those debates waged not just between and among states (and by the 1920s, within intergovernmental bodies), but also jurists. These (often academic) jurists enjoyed (and enjoy) an outsized impact in influencing perceptions — especially the perception of whether something is customary law or not.

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This was precisely the pattern with self-defence. The 1920s and 1930s produced some evidence of state views. For instance, in discussions of the Pact of Paris, Kellogg used self-defence to describe armed resistance to “attack or invasion.” This reference to attack or invasion in relation to self-defence recurred in the documents recording the negotiations, repeated by other delegations.48 Some state practice reflected this approach: the Soviet Union, for instance, answered an American objection to its 1929 clash with “counter-revolutionary” Russian bands and Chinese forces in Manchuria by claiming self-​ defence done without infringing the Pact, responsive to actual attacks (and not simply an earlier seizure of a railway viewed by the Russians as illegal).49 This conduct suggested self-defence in the Pact context arose in a series of circumstances more limited than might have been the case in the nineteenth century, with its broader notion of “self-preservation.” At the very least, “attack” and “invasion” connoted an immediacy of injury, far distant from the more pre-emptive concept of self-preservation at issue in Copenhagen in 1807 or the German invasion of Belgium in 1914. Indeed, evidence suggests that even states using the old terminology of “self-preservation” hewed to a narrower understanding. In 1940, British legal advice on what sort of pre-emptive action might be taken in the face of the German invasion of neutral countries concluded Britain could itself invade in a case of “urgent necessity” and in “certain knowledge” that Germany “was about to invade Belgium or Holland, and if the only means of preventing her reaping the advantages of such invasion was to invade them ourselves.”50 Jurists advanced a similar view of self-defence. To be sure, there was no consensus or complete uniformity on this point. In the 1920s, some textbook writers continued to invoke the Caroline and its narrow rule alongside other events, like the 1807 Copenhagen conflict. This created uncertainty about the concept’s remit.51 As Charles Fenwick put it in 1924, “the abstract right of self-defense against all forms of attack is conceded, but it has not been reduced to a positive rule by a consistent line of precedents.”52 But other jurists went further in debating the scope of self-defence. Three years after the Kellogg-​Briand Pact came into being, the new American secretary of state, Henry 188

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Stimson, revisited the self-defence discussion in a public speech. In it, he noted that self-defence was “the only limitation to the broad covenant,” and was a concept whose “limits have been clearly defined by countless precedents.”53 He provided no examples — ​but law professors did. The University of Chicago’s influential Quincy Wright concluded the Kellogg-Briand Pact outlawed “defensive wars”: the initiation of a state of war for defensive purposes.54 And he concluded it was “very doubtful” a state “could[,] under the Pact[,] declare war an act of self-defence, unless another state was already in a state of war against it, in which case the other state would already have violated the Pact.”55 Wright disinterred the story of the Caroline to show that state claims to self-defence could be disputed.56 In an obvious emulation of Daniel Webster’s famous 1841 formula, Wright wrote that self-defence justified otherwise illegal action “only if the action was taken to prevent an immediately impending, irreparable injury and for that purpose alone.”57 In like manner, other international lawyers looking for a means to structure (and likely, limit) the now newly important doctrine of self-defence resuscitated the Caroline affair, and the discussions between Lord Ashburton and Daniel Webster settling that matter.58 This revitalization may have been aided by a coincidence of timing: the 100th anniversary of the event. In a 1938 essay published in the prestigious American Journal of International Law, Robert Yewdall Jennings announced his intent to review the Caroline matter to meet the needs of a “time when the law has become once more fluid and is undergoing rapid change.” Jennings, who was elected in 1955 to a prominent chair of international law at Cambridge, eventually became a judge of the International Court of Justice, the PCIJ’s post-1945 successor. His 1938 essay lauded the Caroline as the “first important case of intervention in self-defence where the intervention was suffered by a strong state.” It rehearsed the facts of the dispute before commending the rigour with which the diplomats had defined the parameters of self-​ defence. The Caroline, Jennings argued, distinguished self-defence from the sweeping concept of self-​preservation. While self-defence on the Caroline standard “presupposes an attack, self-preservation has 189

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no such limitation, and, broadly applied, would serve to cloak with an appearance of legality almost any unwarranted act of violence on the part of a state.” Jennings acknowledged that Webster, Fox, Ashburton, and the law officers of the Crown who penned the missives in the dispute likely did not truly appreciate the distinction between self-​ defence and self-preservation given the degree to which the terms were used interchangeably. But their dialogue — in which both sides agreed on the law (although not the facts) — became valuable as a precedent. Jennings declared the Caroline to be the “locus classicus of the law of self-defence.” “It was with the Caroline case,” he stated, “that self-defence was changed from a political excuse to a legal doctrine.”59 Jennings’s article would have lasting impact, and is heavily referenced even today in modern international law scholarship.60 In sum, nothing was inevitable. But in retrospect, this scholarly output from the inter-war period contributed to the sense that the Caroline — itself a codification of the natural law thinking of earlier centuries — was customary international law.61 It also contributed to the repurposing of Webster’s language. In the nineteenth century, the Caroline constituted a simple example of self-preservation exercised on the territory of another state incapable of suppressing an insurgency. In the inter-war period, it increasingly became a convenient reference point for a narrowing concept of self-defence, limiting of state violence. In other words, the Caroline was shorn of its facts as Webster’s formula evolved into a mantra. Paradoxically, this scholarly transmutation was aided, however modestly, by the great failures of the inter-war period.

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Collapse There was the necessity of meeting a great and imminent danger —  an overt attack by members of a vastly superior force, capable, if not nipped in the bud of driving the Japanese into the sea . . . What else was to be done? There was no instant for deliberation —  the open attack was launched upon them. — Japanese Government (1932)1

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tates breached their obligations under the League Covenant and the Pact of Paris in the 1930s. There was a destructive war between Paraguay and Bolivia in 1933, and, more famously, the 1935 Italian invasion of Ethiopia. Other examples of what was soon called “aggression” included Peru in Colombia, Germany in Czechoslovakia, and Russia in Finland.2 In each instance, various constellations of great powers condemned the aggressor state for its violation of the Kellogg-Briand Pact and the League of Nations framework. They also stressed that the territory acquired through these violations would not be recognized as constituting part of the aggressor state. The most famous expression of this concept came as the “Stimson Doctrine,” named after the US secretary of state. Issued in 1932, the Doctrine — essentially, a position taken in a diplomatic cable — asserted that the United States did “not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris.”3 This concept — now lying at the diamond core of international law — constituted the flipside of the Pact’s renunciation of war as policy: if war was unlawful, so too were its fruits.4 191

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In condemning the conflicts of the 1930s, states also rejected sweeping self-defence claims where aggressors so asserted. For instance, the League denied Italy’s claim that Ethiopia’s mobilization of troops justified its Ethiopian campaign as one of defensive necessity.5 (This conclusion triggered the League’s economic sanctions regime for the first time, ultimately done in vain.)6 But the most detailed treatment of self-defence — one in which the Caroline would figure — came in the Japanese-Chinese conflict in Manchuria. A long way from the Niagara River, Manchuria is a region in northeast Asia, now part of modern China and Russia. In the 1930s, Japan exercised special rights in the region, treating it as a strategic buffer zone against Russia, Japan’s enemy in the 1905 Russo-Japanese War. The Japanese garrison — the Kwantung Army — secured strategic railways and sought to contain Chinese nationalist objectives in the region.7 On 18 September 1931, Japanese soldiers responded to an explosion on a Japanese-controlled railway by occupying Mukden (today’s Chinese city of Shenyang). In their telling, the Japanese unit investigating the explosion was fired upon by a considerable Chinese force. Joined by reinforcements, the Japanese continued their firefight with the Chinese for several hours, eventually shelling and overrunning the Chinese barracks, ultimately seizing Mukden, and from there, expanding their control through Manchuria.8 The Chinese forces withdrew, and Chinese nationalist leader Chiang Kai-shek referred the Japanese conduct to the League of Nations. The League appointed the Lytton Commission to investigate the matter.9 During this period, Japan had already been asserting that China was in a state of chaos and civil conflict, and therefore was not entitled to the protections of international law, including the League Covenant.10 In arguments before the Commission, the Japanese stated that their conduct in Manchuria complied with the League Covenant and the Kellogg-Briand Pact, constituting an act of self-​defence that could be exercised even beyond a state’s own territory.11 For their part, the Chinese disputed the Japanese account of events, claiming that the assault on the Chinese barracks was unprovoked.12 The Lytton 192

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Commission also dismissed the Japanese arguments, and it rejected the Japanese claims that China was denied the protections of international law, because of its degree of disorganization.13 It concluded that the Japanese had swiftly executed a pre-prepared plan on 18 September, while the Chinese had no plan to attack the Japanese. There had been an explosion on the railway, but one that caused minor damage and did not even delay the arrival of the scheduled train. In these circumstances, the Japanese military operations “[could not] be regarded as measures of legitimate self-defence,” although the Commission did not “exclude the hypothesis that the officers on the spot may have thought they were acting in self-defence.”14 (Later investigations concluded that the railway explosion was attributable to the Japanese themselves, done as a pretext for invasion.)15 The Commission’s finding was greeted with consternation by the Japanese. The Japanese rebuttal pointed to the Commission’s own acknowledgement that Japanese officers may have thought they acted in self-defence. It then cited by name Daniel Webster, and reproduced (selectively) his famous Caroline formula for self-defence: “necessity, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” That standard, the Japanese argued, had been met. “There was the necessity of meeting a great and imminent danger — an overt attack by members of a vastly superior force, capable, if not nipped in the bud of driving the Japanese into the sea.” More than that, there “was no choice of means. What else was to be done? There was no instant for deliberation — the open attack was launched upon them.”16 In deploying Webster’s words, the Japanese implied that the Caroline need not be confined to its facts. Clearly, the clash in Manchuria bore little resemblance to the circumstances of the Caroline. Manchuria was a conflict between states, with an invading state claiming self-defence against the conduct done by the invaded state, on the invaded state’s own soil. The Caroline, in comparison, involved a brief incursion against an insurgency on neutral (but poorly governed) territory to suppress attacks on the defending state’s soil. Why Japanese statesmen thought the Caroline apposite to Manchuria 193

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is not clear. It may be that they were swayed in their use of Webster by the academic discussions around the Kellogg-Briand Pact; or they may simply have reached for a convenient formula they thought fit the bill. Either way it did nothing for their case. This was especially true because they omitted the additional proviso in Webster’s formula: the defender must do “nothing unreasonable or excessive” and keep within the necessity justifying the defence. This proportionality requirement constitutes a safeguard against pretextual war — it was clearly not met here. In the words of Gerald Fitzmaurice, then a junior legal advisor in the United Kingdom foreign office, and later, after the war, a judge of the International Court of Justice: there could be no self-defence, since the Japanese actions “have clearly been out of all proportion to any danger which could be said to exist to Japanese nationals and property.”17 Even if the Japanese soldiers had defended against a Chinese assault in a firefight, the extended military operations and the ultimate military occupation of Manchuria was an extreme response. As the Chinese pointed out, after the firefight, Japan did not limit her action to meeting the precise local condition (whatever that was) by localised action, and dealing with the immediate need for defence (if there was such a need). Without waiting for direct negotiations, she sent large numbers of troops into China, established military occupation in important places over a wide area of China, and carried on military operations which resulted in the loss of many Chinese lives and the destruction of much Chinese property.18

As China also argued, “it is a dangerous principle to assert that, in order to protect nationals and their property in a foreign country a large number of troops may occupy so many places, destroy so much property and kill so many innocent people.”19 In their condemnation of the Lytton Report, the Japanese declined to address this issue. They noted that while the Lytton Report discussed at length Japanese conduct after 18 September, the “Japanese Government will not here enter into the numerous points of detail on which observations would have to be made. They are conscious of never having transgressed the due limits of the right of self-defence.”20 194

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Japan subsequently departed the League of Nations, a decision made when it learned the League would endorse the Lytton Commission’s dismissal of Japan’s position.21 In withdrawing, it again asserted that China was not an organized state entitled to the general principles and usages of international law.22 It also complained: In asserting that the action of the Japanese army at the time of the incident of September 18th and subsequently did not fall within the just limits of self-defence, the report assigned no reasons and came to an arbitrary conclusion, and in ignoring alike the state of tension which preceded, and the various aggravations which succeeded, the incident — for all of which the full responsibility is incumbent upon China — the report creates a source of fresh conflict in the political arena of the Orient.

This proved true. The Lytton Report galvanized anti-Western sentiment in Japan,23 and also stirred national grievance stemming from historic racial discrimination in Europe and North America.24 Political and economic tensions and the prospects of war with the United States compounded the Japanese reorientation toward confrontation with the Western powers.25 Japan’s narrative of victimization prefaced a policy shift to military imperialism in Asia.26 The Manchuria issue combined images of “Chinese aggression and Japanese martyrdom into a constructed narrative of national unity,” with the people arrayed against enemies in the battlefield and critics in the international community.27 Japan subsequently embarked on an extended war and occupation in China in 1937, after a clash in Beijing between Chinese troops and the sizable Japanese garrison assigned to its legation in the Chinese capital. This event also produced a passing consideration of self-​defence, hinting at the same concern about proportionality that had figured in the Manchuria incident. Though Japan had left the League of Nations by this point, its conduct was assessed by a subcommittee of the organization. The body concluded that Japan’s actions violated its international obligations under, among other things, the Kellogg-Briand Pact. Nor could the conduct be justified by self-defence: “[T]he military operations carried on by Japan against 195

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China by land, sea and air are out of all proportion to the incident that occasioned the conflict.”28 But again, the League’s views failed to deter Japan. Its war in China would endure until 1945, a period during which Japan was Germany’s Axis ally in the Second World War. As that larger, calamitous conflict made abundantly clear, the Kellogg-Briand Pact clearly did not stop wars. Still, despite this failure, it deserves more respect than it typically now receives — as it is barely known at all. The Pact mattered by becoming a regular part of diplomatic condemnation of the conflicts of the 1930s.29 Its obligations went ignored by some states. But critically, these dictates were “repudiated by none.”30 Along with the League Covenant, the Pact created a presumption against war. This change was consequential. In the 1920s, the nineteenth-century attitude to war was abandoned in favour of a more assertive role for international law. Despite its obscure, ancient-sounding Latin, the expression jus ad bellum — the legal circumstances in which a state may go to war — was a product of the inter-war period31 and became a “predominating feature of international law.”32 The concept may have had its antecedents in the “just war” principles of earlier epochs, but it came in a new guise. As Quincy Wright argued in 1936, the international law of war now “no longer attempt[ed] to distinguish between justice or the injustice of the belligerent’s causes, but instead attempt[ed] to distinguish between the fact of aggression or the fact of defence.”33 There was a straight line between that focus and the emergence of the United Nations system in 1945.34 That inter-war shift also provided the legal basis for the crimes against peace with which the victorious Allies charged and prosecuted Nazi officials at the post-war Nuremberg trials.35 Both developments provided the entry for the first post-war invocations of Webster’s Caroline formula.

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Banning Force All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. — Article 2(4), Charter of the United Nations

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he Second World War did not end the effort to outlaw war — it galvanized it. In 1945, forty-nine states — at that time, effectively the international community — concluded the United Nations Charter, a treaty that is the closest thing to a constitution in international law and relations. Like the League Covenant, the Charter created an intergovernmental body: the United Nations. This is not a world government capable of legislating, per se. Instead, it is a venue for resolving international disputes and proposing common policies on matters of international significance. The United Nations comprises six main “organs” and an array of subsidiary and specialized agencies and organizations. Among these are the UN General Assembly (the body’s plenary forum for discussion of international matters) and the International Court of Justice (ICJ) (the standing arbitral body that succeeded the Permanent Court of International Justice). Both the General Assembly and the ICJ occasionally play roles in international security, but these are minor functions: the General Assembly has powers under the Charter only to recommend, and the ICJ hears cases only in those rare instances

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when contesting states agree to its jurisdiction (or when one of the UN organs asks for a non-binding legal advisory opinion). This UN Charter anticipated, therefore, that another organ — the UN Security Council — would decide matters of peace and security, guided by new legal principles on use of force. In this last regard, the Charter took what was tacit in the Kellogg-Briand Pact and made it emphatic. Article 2(3) of the new Charter requires all member states to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Using language that emulated concepts invoked during the nineteenth and early twentieth centuries and consciously built on the Kellogg-Briand Pact,1 article 2(4) pledges members to refrain “in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Entire books can be written about this simple phrase. The rule might be parsed in quest of a use of force that does not impair the “territorial integrity or political independence of any state,” permitting a repeat of the Italian bombardment of Corfu in 1923. But practically, it is difficult to imagine any non-consensual use of force that complies with standard. The very act of using force without the consent of the territorial state is inconsistent with a state’s sovereign control over affairs within its borders,2 and recourse to violence is “inconsistent with the Purposes of the United Nations”3 and its peaceful dispute settlement obligation in article 2(3). The UN Charter, therefore, tosses the concept of “war” into the dumpster of international law — a bygone thing of the past that stood on ceremony and focused on “states of war” and “states of peace.” And along the way, it dispenses with the concept of armed reprisals4 and, in the majority view, humanitarian intervention done unilaterally without the blessing of the Security Council.5 Anything that transgresses the “use of force” threshold in relations between states is presumptively unlawful. That said, the use of force by states is not entirely prohibited. Most obviously, article 2(4) of the UN Charter is not offended if a 198

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state consents to the use of force on its territory by another state, a prospect that arises where that government calls allies to its assistance. Likewise, use of force by a state within its own territory has traditionally fallen outside of the article 2(4) limitation, leaving civil wars weakly governed by today’s jus ad bellum. (There are certainly instances where the Security Council has declared such conflicts a threat to international peace and security, and even authorized force in response to it, as in Libya in 2011. But such attention to internal strife is a recent and still sporadic development.) More generally, use of force directed by one state against another is now permissible in international law in only two circumstances, both expressly anticipated by the UN Charter. First, pursuant to Chapter VII of the UN Charter, the United Nations Security Council may legitimize and authorize the use of force to respond to “any threat to the peace, breach of the peace, or act of aggression.”6 Second, the UN Charter also acknowledges (but does not itself create or define) an inherent right to self-defence. In according the Security Council its powers, the UN Charter sought to accomplish by design what the League of Nations Covenant tried to reach by process: the removal of war from the arsenal of each sovereign state and a move to a system of collective security, managed by the Security Council. That body was given primacy in questions of international peace and security — deciding what constituted a threat or breach of international peace and security, and what measures were to be taken in response. And on this powerful entity, the victorious powers of the Second World War have pre-eminence. The total membership of the Security Council would eventually reach fifteen in 1965 — up from eleven in the original treaty — but only five of those members (the so-called P5 or Permanent 5) have an indefinite tenure on the Council. The others enjoy terms of two years, on election by the UN General Assembly. The P5 — China, France, the USSR (now Russia), the United States, and the United Kingdom — also exercise the so-called veto power. In practice, this means that if any one of them votes against a resolution of the Security Council, it fails. This power, a product of compromise during the Charter’s negotiation, has proven 199

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debilitating. The Security Council can act only through its resolutions. During the interregnum between the end of the Cold War in 1989 and the renewal of great power tensions in the last decade, there were Security Council resolutions authorizing states to use force against or within another state. These included, most famously, uses of force against Iraq after its 1990 invasion of Kuwait and in Libya’s 2011 civil conflict.7 But during most of the Security Council’s history, the Cold War, and then more recent geopolitical tensions, have made it difficult for the five permanent members to co-operate, and resolutions have failed. Or, in the face of certain veto, resolutions fail to be decided or even contemplated. The result has been a body more paralyzed than its founders had hoped. The Security Council’s political imperfections have therefore made it a deeply flawed arbiter of force in international relations. This, in turn, has diverted attention from its role to that of the remaining unilateral ground for states to use force: self-defence. And it is this inherent right to self-defence that implicates the Caroline and its legacy. Unlike in earlier instruments, the existence of the right to self-defence is emphatically recognized in the UN Charter, in article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Despite its repeated references to the Security Council, article 51 insulates self-defence from the paralysis of that body.8 A state may act in self-defence unilaterally, with no advance blessing from the Council. Self-defence cannot, therefore, be vetoed by a permanent member. And while the Security Council can intervene and order 200

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an end to an act of self-defence, it can act only through a resolution that must itself avoid a veto. Consequently, permanent members and their allies possess considerable discretion to shape “the inherent right” of self-defence. This is especially true because self-defence in article 51 comes without a definition. As with the Kellogg-Briand Pact, the absence of description was no oversight. During the 1945 San Francisco conference that culminated in the UN Charter, American negotiators — unquestionably the most influential in the crafting of the Charter — were initially disinclined to even mention self-defence in the treaty. Again, as with the Kellogg-​ Briand Pact, they considered the concept implicit. The UN Charter only barred use of force inconsistent with the purposes and principles of the United Nations. Since aggression was inconsistent with those purposes and principles, the Charter did not limit “the right of self-defense against attack.”9 Indeed, one of the chief American participants, former Minnesota governor Harold Stassen, noted that invoking self-defence in the Charter would raise questions of definition. His colleague, US senator Arthur Vandenberg, seemed to concur, recalling the hours of debate expended on this same matter during the negotiation of the Kellogg-Briand Pact.10 And an explicit mention of self-defence might encourage future Russian claims “that they were acting under the provisions of the Charter permitting action in self-defense.”11 On the other hand, Latin American countries feared that a UN Charter without reference to self-defence might impede an inter-​ American collective security pact, then found in the Act of Chapultepec. That March 1945 instrument provided “every attack of a state against the integrity or the inviolability of territory, or against the sovereignty or political independence of an American state, shall . . . be considered as an act of aggression against the other states which sign this declaration.”12 It further specified that “invasion by armed forces of one state” into another’s territory constituted aggression. In this manner, the Act created a regional system of collective self-defence, in which an attack by one state constituted an attack against all others. The difficulty in reconciling regional security arrangements — ​ and most immediately, the Act of Chapultepec — with a new global architecture in which the UN Security Council exercised primacy 201

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over matters of international peace and security confounded the delegates, and ultimately became a pressing political concern. The compromise, attributable to Harold Stassen, was to invoke collective self-defence in a new article that now squarely clarified the persistence of self-defence in the UN framework.13 The Latin American delegates concurred that the new article permitted the “one for all, and all for one” aspects of the Act of Chapultepec.14 Soviet concerns about the indefiniteness of “collective” were overborne by American insistence, and article 51 was incorporated into the final UN Charter.15 “Collective” self-defence is a concept that has since served as the basis for more modern alliances such as the North Atlantic Treaty Organization (NATO). Motivated solely by this need to recognize coalitions, the Charter’s drafters were no more inclined than their predecessors in the Kellogg-Briand Pact to add precision to this self-defence concept. They again left unanswered the perennial question of what exactly constitutes the “inherent right of self-defence.” But resolving this indeterminacy was now more urgent than it was in the inter-war period. Now, self-defence graduated to the sole, expressly acknowledged, and universally accepted basis for uses of force by states against another state or its territory, where the new Security Council had not provided its authorization. And so, jurists reached for the obvious reference point: the inter-war understanding of self-defence, one that had itself repeatedly made use of the Caroline.16 Just after the UN Charter’s inception, another international body set the tone, creating a link between the new post-war order and the Kellogg-Briand Pact period.

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Remembering the Caroline Meme, n. — A cultural element or behavioural trait whose transmission and consequent persistence in a population, although occurring by non-genetic means (esp. imitation), is considered as analogous to the inheritance of a gene. — Oxford English Dictionary

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t the end of the Second World War, the allies constituted the International Military Tribunal (IMT) at Nuremberg to try Nazi accused. Among the crimes for which the Tribunal had jurisdiction were crimes against peace, including the “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements, or assurances.”1 As prosecutors soon argued, this crime was built, most notably, on the Kellogg-Briand Pact.2 Charged with violating these rules, the Nazi leadership was prosecuted for, among other things, its occupations of European countries. These included the 1940 invasion of Norway, which foreclosed a northern flanking move by the Allies and was later used as a springboard for the German attack on Russia.3 A relatively minor event on the vast canvas of the Second World War, the Norwegian operation served as a conduit for the first thorough post-war treatment of the self-defence concept. In their Nuremberg trials, the Nazi defendants argued Germany was compelled to attack Norway to pre-empt an Allied occupation of the country; thus, it was a preventive operation. Moreover, it was for Germany alone to decide whether its conduct met the standards of the Kellogg-Briand 203

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Pact in relation to this preventive act.4 These views were entirely consistent with a nineteenth-century concept of self-preservation — in some respects, they constituted a rerun of the British justification of its 1807 Copenhagen attack — but they were positions that could not be reconciled with the Kellogg-Briand Pact and the narrowing of legitimate defence. In its judgment, the Tribunal held “whether action taken under the claim of self-defence was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.” In deciding the test for assessing this alleged preventive action, the Tribunal relied on the Caroline and Webster’s April 1841 formula: “It must be remembered that preventive action in foreign territories is justified only in case of ‘an instant and overwhelming necessity for self-defence, leaving no choice of means, and no moment of deliberation.’” This standard was not met: when the Nazis were making their invasion plans, they were not intending to stop “an imminent Allied landing, but, at the most, [to] prevent an Allied occupation at some future date.”5 Germany occupied Norway to establish bases from which to attack Britain and France.6 In these circumstances, it was impossible to conclude that the Norway invasion was defensive. It was an act of “aggressive war,”7 in violation of the Kellogg-Briand Pact.8 The implications of the IMT’s reasoning was uncertain. For instance, it suggested that self-defence could arise even absent an actual armed attack on Germany. The German legal claims failed, but only because Germany’s occupation of Norway was too distant from an immediate threat, and pretextually motivated by reasons other than immediate defence. As discussed later, this reasoning may have helped refashion the Caroline into a justification for “anticipatory” self-defence, one pre-emptive of an actual attack. At the very least, however, the IMT’s judgment served as the conduit between the limited pre-war discussions of the Caroline formula and its post-war renewal.9 Jurists after 1945 consciously reached for a universal (and constraining) understanding of self-​ defence in the new post-war world order, and found Daniel Webster waiting. 204

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Beginning soon after the Second World War, academic treatments of self-defence were twinned with consideration of the Caroline. Then and more recently, some jurists — probably the minority — did situate the event, and its contribution to self-defence, in its factual context.10 But more often, Webster’s formula became (and has since remained) a common expression of the basic requirements for self-defence in international law. It traced a trajectory, begun before the war, from idiosyncratic example among sweeping justifications for protective force to the meme describing when states may make use of force without Security Council authorization. The post-war scholarship of Phillip Jessup, Humphrey Waldock, Rosalyn Higgins, and Robert Jennings, all soon judges of the International Court of Justice, provides some indication of this transmutation. In 1948, Jessup called Webster’s Caroline formula, with its focus on necessity, “an accurate definition for international law.”11 In 1952, Waldock proposed that the Caroline was the “decisive point” in restraining the older concept of self-preservation. In light of the inter-war experience, he urged the “need to keep self-defence within the strict limits of the doctrine of the Caroline” and reproduced Webster’s formula to describe the “proper limits of the plea of self-​ defence.”12 In her 1962 doctoral dissertation, Rosalyn Higgins cited Webster’s Caroline formula as the accepted standard for self-​defence under “traditional international law.”13 And under Waldock’s editorship the next year, his Oxford colleague James Lesley Brierly’s classic twentieth-century treatise, The Law of Nations, proposed a more sweeping significance for the Caroline than had earlier editions: “Self-defence, properly understood, is a strictly inherent right and the best statement of the conditions for its exercise is commonly considered to be found in the incident of the steamer Caroline in 1837.”14 Similarly, Oppenheim’s international law textbook treated the Caroline as a simple example of self-preservation in the 1905 through to the 1955 editions.15 But by the 1992 edition co-edited by Robert Jennings and Arthur Watts, a UK Foreign Office legal advisor, it declared “the basic elements of the right of self-defence were aptly set out in connection with the Caroline incident in 1837 by the American Secretary of State, Daniel Webster.”16 205

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Over the decades, there have been occasional dissents to the pre-​ eminence of the Caroline.17 But in the minds of jurists and diplomats, Webster’s pithy formula has escaped its history and its Anglo-American origins. In a massive body of literature, it has become the litmus test in international law for self-defence and a constant feature in international law deliberations,18 with jurists often simply accepting it as the appropriate test and in other instances begrudging it its status.19 The Caroline’s impact has now become so consequential that modern scholars describe it as having reached “mythical authority.”20 Tracing its relevance in the post-9/11 era, one twenty-first-​century jurist has declared that “the modern law of self-defence was born” with the Caroline affair,21 and another has asserted that Webster’s language in the Caroline matter “made history.” It has transcended its narrow facts and “markedly influenced” the general understanding of self-defence.22 Even jurists inclined to question the Caroline’s resonance for today’s world note that, with proper caution, the “Caroline is an invaluable tool in adding any understanding of the contemporary criteria [for self-defence in international law], due to its similarities to and influence upon them.”23 Former UK Foreign Office legal advisor Daniel Bethlehem argued in 2016 that the Caroline and Webster’s formula “sits uneasily with virtually every circumstance other than the 1837 incident that it addressed.” But still, it has “shaped the law since then and provided an anchor to ensure that, even in the changing circumstances of the modern world, and in the face of new threats, the law and the conduct it addresses will hew towards a necessity to act, not simply an inclination to do so.”24 This scholarly view has spilled over directly into international legal practice. As discussed in the next part, one of the legs of Webster’s stool — imminence — is a source of controversy. But two elements of Webster’s formula — necessity and proportionality — now have canonical status in the decisions of the International Court of Justice. The ICJ has invoked these concepts in four of its cases. In Military and Paramilitary Activities in and against Nicaragua (1986), Nicaragua challenged the United States’ support for the Contras, then waging an insurgency against the Sandinista government. The 206

Chapter 26: Remembering the Caroline

United States also mined Nicaragua’s harbours. The court rejected claims that the United States acted in self-defence, declaring that it is “a rule well established in customary international law” that self-defence warrants “only measures which are proportional to the armed attack and necessary to respond to it” and describing these standards as “canons.” In Legality of the Threat of Use of Nuclear Weapons (1996), the UN General Assembly asked the court to rule on the legality of nuclear weapon use. In concluding that such weapons could be deployed in only the most extreme instance of self-defence, the court observed the “submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law.” In Oil Platforms (2003), Iran challenged the United States’ use of force against Iranian ocean oil platforms, after an American-flagged tanker was attacked by a missile and a warship damaged by a mine. In rejecting the United States’ self-defence claim, the court stated that “the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence.” In Armed Activities on the Territory of the Congo (2005), the Democratic Republic of the Congo accused Uganda of engaging in military and paramilitary activities on its territory. In rejecting the Ugandan self-defence claim, the court did not need to assess the conduct against the test for self-defence, but reaffirmed its elements of necessity and proportionality.25 In deciding these matters, the court has not itself invoked the Caroline by name, but states appearing before it have. The Caroline was pled by states in three of these matters, and also in another case involving use of force that the court ultimately dismissed on jurisdictional grounds.26 Meanwhile, since 1945, self-defence and the Webster elements have become a mainstay in the world’s wars. In these conflicts, the most controversial questions have typically been ones of fact — who is the defender and who is the aggressor — and not of legal doctrine.27 In international politics, these facts are rarely decided conclusively; the ICJ hears only the cases that the belligerents agree to submit to it, and the Security Council has not generally opined on the legitimacy of self-defence claims.28 But that has not meant that self-​defence claims go uncontested in international politics and among jurists. 207

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One recent survey of self-defence claims between 1963 and 2010 identifies eighteen instances of use of force between states in which self-defence was alleged, provoking controversy. In five instances, legal debate hinged on the principle of imminence. Four cases turned on questions about whether the measure was so necessary as to be defensive and not a reprisal. In two matters, doubts were raised about the proportionality of the defensive response. And on seven occasions, the states claimed to be defending nationals, raising the question of whether self-defence reached this sort of protection.29 States invoked the Caroline in several of these instances. And even when they did not, the Webster formula lay somewhere at the foundation of the reasoning deployed to justify the conduct. The last seventy years have, therefore, not been so much about whether the Caroline matters in international law. Rather, as the next section of this book shows, much of the debate has been about what Webster’s formula really means.

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Part V

A Very Modern Steamboat

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Trigger Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs. — UN Charter, article 51

I

f the Caroline has become the modern world’s new obstacle to war, how rigorous a legal rule does it provide? Is it a meme whose content guides conduct, or simply a mantra repeated ritualistically as a slogan? As this book has done before, it is simple to paraphrase Webster’s formula: a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation, in which the defender does nothing unreasonable or excessive; and keeps clearly within the necessity impelling the defence. Even in Webster’s time, there was nothing truly novel about a formula built around imminence, necessity, and proportionality  —  as argued earlier, these elements can be traced to naturalist-infused writings of jurists influential during Webster’s times. But 175 years after its coining, it is difficult to ascribe precise meaning to Webster’s pithy 1841 formula. Certainly, the three elements of this test can be repackaged in fuller form. A right to self-defence exists where • “(a) an armed attack is launched, or is immediately threatened, against a state’s territory or forces (and probably its nationals)” (the requirements of imminence and armed attack); 211

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• “(b) there is an urgent necessity for defensive action against that attack; (c) there is no practicable alternative to action in self-defence, and in particular another state or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect” (collectively, the requirement of necessity); • “(d) the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, i.e. to the needs of defence” (the requirement of proportionality).1 As discussed below, not every statement in this list is universally accepted. But even if these concepts could be phrased in acceptable language, it is sometimes difficult to tease apart the three elements of self-​defence, as each has a bearing on the scope of the other.2 Moreover, the formula, at best, establishes the playing field. This pitch is smaller than what existed in the nineteenth-century era of self-preservation. But the playing surface does not dictate the precise rules of the game played on it. In the period since 1945, this has given states considerable latitude to claim compliance with Caroline in their uses of force, sometimes plausibly and often less so. In this fashion, Webster’s formula has served the same purpose as the source of some its concepts, Emer de Vattel’s Law of Nations: as a pliable tool that can be shaped according to the political needs of diplomats and the states they serve.3 In this part, I briefly canvass the chief controversies in modern self-defence law, and how the Caroline has been used to resolve or confuse the issues. In the modern law of self-defence, substantial legal uncertainty stems from the awkward link between Webster’s formula and the language of article 51 of the UN Charter. Article 51 invokes the “inherent right to self-defence” where an “armed attack” “occurs.” This language — ​with no exact analogue in pre-Charter thinking4 — has provoked several disputes in which the Caroline has figured. For one thing, there have been doubts in the near past about whether conduct by a non-state actor, such as an insurgency, can 212

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amount to an “armed attack.” This is a puzzling uncertainty, given the facts of the Caroline. But while there is no consensus, the question now seems settled in practice, given the regular use of force against terrorist groups in self-defence since 9/11, including (most recently) Daesh (ISIS) in Syria and Iraq.5 A related doubt is what exactly constitutes an “armed attack.” It is not precisely clear from its drafting history exactly what the framers of the UN Charter meant by the term.6 But it is incorrect to say, as the United States government has, that “there is no indication that the drafters of the UN Charter intended to limit” customary international law in relation to the breadth of self-defence.7 As discussed previously, the inclusion of an express reference to self-defence in the Charter responded to political imperatives; specifically, reconciling the inter-American collective security arrangement under the 1945 Act of Chapultepec with the new UN system. Indeed, the word “attack” in what became article 51 was drawn consciously from that Act, as future US secretary of state John Foster Dulles noted. Dulles, a delegate to the UN Charter negotiations, urged the inclusion of “armed” as a limiter on the collective self-defence permitted by the Charter where instruments like the Act of Chapultepec existed. This would preclude its use in circumstances such as a “propaganda attack” or other “political efforts” to overthrow political institutions in a state.8 And in keeping with this view, an original American draft of what would become article 51 applied “armed attack” only to defence by regional organizations linked by “understandings and arrangements” — ​like the Act of Chapultepec — “under which all members of a group of states agree to consider an attack against one of them as an attack against all of them.”9 The use of “armed attack” as a trigger here avoided any need to define aggression,10 a task that had defeated diplomats for decades (and continued to defeat them for decades to come). But still, that early American draft preserved this different “aggression” threshold for individual self-defence by states: where the Security Council had failed to prevent aggression, and “should aggression occur by any state against a member state such member possesses the inherent right to the necessary measures for self-defense.”11 213

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The American draft — with its two standards for self-defence — ​ deeply upset Anthony Eden, then the British foreign secretary and eventually the British prime minister. He questioned whether aggression could be defined, and seemingly favoured a more expansive concept of collective self-defence, allowing states to help other states counter Russia’s expansionist ambitions in Europe and the Mediterranean.12 The final formula, devised by British and American negotiators, incorporated expressly the broad concept of “collective self-defence” unmoored to regional “understandings or arrangements” and dropping any express reference to the Act of Chapultepec. It also maintained “armed attack” as the trigger for self-defence. But now it extended this trigger to individual self-defence as well. This move was opposed by John Foster Dulles. Dulles had earlier championed the use of “armed attack” to constrain collective self-defence, but believed “the individual right should not be curtailed in any way.”13 He did not prevail in this view. It is clear, therefore, that the UN Charter’s framers understood they were articulating a concept of self-defence triggered in circumstances more demanding than might have been the case in earlier periods.14 “Armed attack” was discussed as a limiter, and was recognized as more constraining than other concepts, such as “aggression” or forms of attack that did not involve arms. These original views are not dispositive — treaty interpretation requires also consideration of “any subsequent practice in the application of the treaty.” But this is true only where that practice evinces agreement by the treaty’s parties regarding that interpretation.15 On “armed attack” there is now considerable practice, but no universal agreement. There has been significant debate, for instance, about whether violence must reach a level of gravity before it is an armed attack.16 Thus, an invasion by enemy forces, the cross-border use of weapons, or bombardment are “classic cases” of armed attack, if done at a scale exceeding so-called frontier incidents.17 Under this formula, incidental clashes, such as a localized exchange of fire between infantry units, would not cross the threshold to an armed attack. But not everyone agrees with this approach. Some jurists and states — including 214

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the United States — conclude that there is no such gravity or scale requirement,18 a position resonant with John Foster Dulles’s 1945 objection to limiters on individual self-defence. Still other jurists tie the threshold of armed attack to its immediacy, with immediate armed reaction permissible even in reaction to a small-scale use of force by another state.19 In recent times, the debate over armed attack has sometimes raised concerns about whether self-defence is properly invoked in response to single acts of terrorism, or the accumulation of single acts, typically done on a scale much less devastating than 9/11. The British drone strike killing Reyaad Khan — the event with which this book began — sparked unease among the United Kingdom’s special Intelligence and Security Committee of Parliament for exactly this reason.20 A different doubt is whether self-defence can be deployed even in the absence of the “armed attack” described in article 51. On this issue, several states and jurists have argued for a broad “inherent” customary right to self-defence, existing independently of the standards in article 51.21 They have sometimes done so by pointing at the Caroline. As early as 1952, for instance, Waldock argued that article 51 did not temper — or “cut down” — Webster’s formula on this issue and that self-defence reached circumstances beyond armed attacks.22 It is hard to reconcile this position with the text and negotiating history of article 51, described above. It is also puzzling that jurists would use the Caroline in justifying self-defence against a general threat falling short of an armed attack. As explored in greater detail later, Webster’s formula was coined in circumstances where there was an armed attack against the territory of the defending state — the lengthy occupation of Navy Island and the bombardment of Chippawa surely exceeded the threshold of a mere frontier incident. Nevertheless, the ahistorical application of the Caroline has coloured international practice. For one thing, it has occasionally opened the door to forcible interventions on foreign soil designed to remedy wrongs short of armed attacks, raising the prospect that the idea of self-defence is drifting back to a broader concept of 215

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self-​preservation. This was exactly the debate provoked by one of the first serious inter-state conflicts of the post-war period. Ironically, this was a conflict in which Anthony Eden — a framer of the Charter’s constraining trigger for self-defence — treated the concept as if it included no precondition of “armed attack.” On 26 July 1956, Egyptian president Gamal Abdel Nasser proclaimed the expropriation of the Suez Canal Company, jointly owned by the United Kingdom and France. The move angered these two states and distressed Israel, which feared Egypt would further impair passage of its vessels through the Canal. The three states contemplated a military response, ultimately engineering an Israeli invasion of Egypt. This was followed by a joint (and pretextual) Anglo-French “police” action interposing itself between the belligerents (and ultimately bombing the Canal zone).23 However, the UN Charter constituted an awkward obstacle to this conduct. The only plausible legal justification was self-defence. But in the circumstances, that required a very broad read of the applicable standards. Israel argued that its conduct was justified as a defence against attacking armed bands which, it said, were being used by Egypt to destroy it, and Egypt’s blocking of Israel-bound shipments through the Canal.24 And in the United Kingdom, the Anthony Eden government secured a helpful legal opinion from the Lord Chancellor — an official whose traditional function did not include providing such advice. That opinion expressed the view that under the Charter, the United Kingdom and France could take “every measure open to them . . . to stop the fighting and to protect their nationals and interests which are threatened by these hostilities.”25 In its more detailed form, the opinion cited Waldock’s view (noted above) that article 51 had not “cut down” the customary right. Blocking the Suez Canal would cause “irreparable damage and suffering to a number of nations.” The danger to shipping in the Canal, and to the Canal itself and to British nationals was enough to justify forcible intervention.26 In the House of Lords, the Lord Chancellor argued (in a remarkable generalization of the Caroline’s facts):

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The doctrine that I have put forward is an old and well-established doctrine. It was established at least 100 years ago in the case of the “Caroline”, which was a matter discussed between the United States and ourselves. The foundation of the doctrine was accepted as “imminent threat to your nationals”. The doctrine arises, and that form of self-defence becomes legal, when the imminent threat is made.27

After the United States made clear its opposition to the intervention, the belligerents agreed to a ceasefire and the United Nations Emergency Force was constituted, placing itself between Egypt and Israel in the Sinai in the first example of a UN peacekeeping mission.28 For his role in engineering this novel settlement unanticipated by the text of the UN Charter, then Canadian foreign minister, Lester Pearson, received the Nobel Prize in 1957.29 Most states, meanwhile, rejected the British, French, and Israeli justifications for force.30 Indeed, in a remarkable act of internal dissent, the official British legal view on self-defence was also opposed by legal advisors to the British government.31 The UK National Archives contain an internal Foreign Office copy of the Lord Chancellor’s doubtful legal opinion. It is festooned with marginal notes, seemingly from Foreign Office officials, disputing its assertions, complete with exclamation marks. The final notation reads: “A lot of dubious arguments & half-truths.” Then principal Foreign Office legal advisor Gerald Fitzmaurice — described by his biographer as “one of the greatest international lawyers of his generation” and soon to be a judge of the International Court of Justice32 — wrote a more pointed protest, saying, “we feel bound to place it formally on the record that we can see no legal justification” for the British intervention.33 Fitzmaurice urged that the right to self-defence, under both “basic international law” and article 51, required defence against something “far more direct and immediate than could possibly be involved by an armed intervention in Egypt for the ultimate protection of our interests arising out of the Suez Canal.” To conclude otherwise “would fall under the head of protection of interests, and

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not under the head of self-defence, which, in legal terminology, is confined to an attack on one’s territory, one’s forces or the lives of one’s subjects.”34 The British attorney general, for his part, also raised his own concerns. He argued a state was entitled to self-defence only where “an armed attack occurs, or is immediately threatened against it”; one of its “rights is illegally and forcibly denied or threatened and no other remedy is available”; or “if the lives of its nationals abroad are threatened.”35 Notably, however, even these two dissenting understandings strayed beyond self-defence in response to an armed attack. Not least, they both explicitly argued for the availability of self-defence to protect nationals. This claim was used most famously by Israel in Uganda in 1976. On 27 June 1976, Palestinian and German terrorists hijacked a French airliner en route to Israel and directed it to Entebbe in Idi Amin’s Uganda. The hijackers released more than 200 passengers who appeared not to be Jewish, but held the remaining 103 passengers hostage. On 3 July, Israel mounted a dramatic raid in Uganda without Ugandan consent. The commandos rescued the hostages, suffering four fatalities (including one of the soldiers — Yonatan Netanyahu, elder brother of the present Israeli prime minister). They killed the seven hijackers and destroyed eleven Ugandan fighter jets on the ground.36 Israel defended its conduct as self-defence. Despite the lack of overlap in the factual circumstances, it pointed to the “well-known Caroline Case,” permitting self-defence where the “necessity of self-​ defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”37 This Israeli self-defence claim was supported by the United States, but was resisted by other states because, among other things, there had been no “armed attack.”38 States and jurists continue to debate whether self-defence reaches protection of nationals. Belgian, American, Israeli, and UK arguments favouring this view are disputed, not least because forcible interventions to protect nationals have sometimes then been associated with regime change — the displacement of the invaded country’s government — in places such as Grenada (1985) and Panama (1989).39 The International Court of Justice has never considered 218

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this question, but it has suggested in other contexts that the requirement of an actual armed attack exists both under the Charter and the customary law of self-defence.40 This is a view consistent both with the UN Charter and the facts of the Caroline, and jurists sometimes describe it as the majority view.41 But it has clearly not stopped some states from acting differently by claiming a right to forcibly intervene to protect their nationals.42 This is not the only legal question on which states differ, and on which they debate the content of the Caroline matter. Easily the most contentious issue is the Webster formula’s invocation of imminence: the necessity for self-defence must be “instant,” leaving “no moment for deliberation.”

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Imminence We don’t want the smoking gun to be a mushroom cloud. — US National Security Advisor Condoleezza Rice (2002)1

I

n 1967, Palestinians based in Syria, Lebanon, and Jordan mounted raids into Israel. These were followed by Israeli sorties into Jordan and Syria. The Soviets supplied suspect intelligence to the Arabs suggesting that Israel planned a broader campaign against Syria. Egypt, then in a short-lived confederation with Syria, indicated it would defend the Arab nation by all measures. Egyptian president Gamal Abdel Nasser massed his forces on the Israeli border in May, formally requesting the exit of UN peacekeepers stationed in the Sinai Peninsula since the Suez Crisis. He closed the Gulf of Aqaba to Israeli shipping, blockading the Israeli port city of Elat. Later in May, Jordan and then Iraq entered a mutual defence pact, swelling the troops under Egyptian command. Then, on 5 June 1967, an Israeli surprise attack destroyed 90 percent of the Egyptian air force on the ground, and incapacitated the Syrian air force. Without air cover, the Egyptian army was defeated in three days, and Israel captured the Sinai Peninsula and Gaza Strip. To the east, Israel responded to Jordanian shelling by capturing the West Bank, and to the north, it seized the Golan Heights from Syria. The UN Security Council called for a ceasefire. This was eventually accepted by 221

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the belligerents between 7 and 10 June, bringing an end to the Six-Day War.2 The Arab states and their ally, the Soviet Union, accused Israel of aggression. Israel claimed to have acted in self-defence, even though no armed attack had occurred prior to its assault. Its campaign, Israel claimed, was in response to an impending Arab invasion. In the context of the Six-Day War, the Israeli claim was complicated by its occupation of territory acquired in the conflict, the persistence of some of which continues to sully Middle East politics. And in 1967, its plea of what is commonly called “anticipatory” self-defence received little detailed treatment by the international community.3 But the question of “anticipatory” self-defence persists as one of the most contentious issues in international law and politics. This debate predates the Six-Day War. Quincy Wright, for instance, argued in 1959 that the reference to “armed attack” in article 51 narrowed the “traditional conception of international law,” built on the Caroline, “which permits military defensive action before an attack had occurred if there is ‘an instant and overwhelming necessity.’” Preventive defence was permissible only where “the danger of attack is clear and immediate.”4 This standard forecloses self-​ defence justifying several earlier conflicts,5 such as the 1807 British assault on Copenhagen. Still, as Humphrey Waldock argued in his influential 1952 article on use of force, if the United Nations is obstructed, delayed or inadequate and the armed attack becomes manifestly imminent, then it would be a travesty of the purposes of the Charter to compel a defending State to allow its assailant to deliver the first and perhaps fatal blow. If an armed attack is imminent within the strict doctrine of the Caroline, then it would seem to bring the case within Article 51. To read Article 51 otherwise is to protect the aggressor’s right to the first stroke.6

Put another way, excessive imminence strictures on defensive use of force would constitute a suicide pact.7 Even today, there is no consensus on the existence or scope of anticipatory self-defence,8 but there is considerable support for its most modest form: a state can fend off an attack while it is being 222

Chapter 28: Imminence

mounted, even if it has not crossed a state’s boundaries.9 Here, self-defence is triggered when the attacking state has “embarked on an apparently irreversible course of action,” permitting the defending state to respond without first receiving the blow.10 This approach does the least violence to the language of article 51, and its requirement that an “armed attack” “occur.” The windup to the punch can reasonably be considered as part of such an attack, plac­ ing it within article 51’s temporal window.11 But even this apparently sensible construction leads to quandaries. When, for instance, did the 1941 Japanese armed attack on Pearl Harbor begin: when the aircraft were overhead on 7 December, or when the Japanese fleet steamed from port almost two weeks earlier? There are hints in the UN Charter’s drafting history suggesting one answer: in such circumstances, the defender could not, under the Charter, “attack the fleet[,] but we could send a fleet of our own and be ready in case an attack came.”12 But in modern conflicts against covert enemies plotting terrorist attacks, this may be an antiquated response. In a contest against diffuse and secretive terrorist groups inclined to sudden acts of violence in a civil population, accurate predictions of imminence may be impossible. As a US Department of Justice legal memorandum on targeted killing argues, “a ‘terrorist war’ does not consist of a massive attack across an international border, nor does it consist of one isolated incident that occurs and is then past. It is a drawn out, patient, sporadic pattern of attacks. It is very difficult to know when or where the next incident will occur.”13 Imminence may become a pliable concept when the person is at a distance and perhaps only ephemerally within the targeting state’s reach. The US targeted-killing legal position asserts, for instance, “imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.”14 For similar reasons, the UK government now endorses a “flexible approach” to imminence that would “include an ongoing threat of a terrorist attack from an identified individual who has both the intent and the capability to carry out such an attack without notice.”15 This has opened the 223

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door to controversial targeted killing by drones, in circumstances far removed from a truly imminent “armed attack.” Its implications were canvassed in the UK parliamentary study on the 2015 killing of Reyaad Khan, the drone strike with which this book began. Reviewing Webster’s formula from the Caroline affair, that study concluded, the meaning of “imminence” in the international law of self-defence must be interpreted with a degree of flexibility, in light of modern conditions and in particular the fact that we live in an era of instantaneous communication. A terrorist on the other side of the world may well have the capability to launch a terrorist attack in the UK literally at the touch of a button.16

Recently, an even more consequential debate has not been about intercepting attacks already in progress, however nascent. Instead, questions have focused on whether self-defence can take an even more pre-emptive form, driven not just by a potential adversary’s aggressive conduct, but instead by its intent and means. Even as early as 1946, states contemplated that self-defence might mean something different in the atomic age. The US State Department observed “an ‘armed attack’ is now something entirely different from what it was prior to the discovery of atomic weapons.” Now, it was “important and appropriate” to include as an “armed attack” “not simply the actual dropping of an atomic bomb, but also certain steps in themselves preliminary to such action.”17 And the US Atomic Energy Commission suggested in 1946 that a violation of atomic arms controls “might be of so grave a character as to give rise to the inherent right of self-defence” under article 51.18 These concerns have become more acute with time. In 1976, France sold Saddam Hussein’s Iraq a nuclear research reactor. In June 1981, the Israeli air force attacked the Osirak reactor, still incomplete, destroying its core. Israel defended its actions as anticipatory self-defence, claiming it had been forced to defend itself against the construction of an atomic weapon that Iraq would have used against Israel. In advancing its view, Israel cited Waldock’s 1952 article: article 51 did not give an aggressor the right to strike first. Increased risk from technological change meant, it argued, that 224

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anticipatory self-defence should have a broad remit. The strike was timed, moreover, to avoid the more serious destruction that would have resulted had Israel waited for the facility to become operational. Iraq protested the Israeli action as inconsistent with article 51 of the Charter, which justified self-defence only in response to an armed attack. Other states debated whether anticipatory self-defence existed, but even if it did, concluded there was nothing imminent about the threat to Israel. The United Nations Security Council unanimously condemned the Israeli conduct as violating the UN Charter.19 This response to the Osirak raid suggested that anticipatory self-defence, at best, extended to immediately imminent and not prospective risks. That standard has, however, now been questioned in the post-9/11 period. In this century, the debate has focused on the concept of “pre-emptive self-defence,” sometimes referred to as the “Bush Doctrine.” In the 2002 National Security Strategy of the United States, the George W Bush administration stated that “for centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack.” It then asserted: “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.” Under the new doctrine, the United States proclaimed the right to act in self-defence against nascent, embryonic threats (such as the development of a weapon of mass destruction by a hostile regime), and not just against attacks that are imminent in a more conventional sense.20 This concept was captured poignantly when then US National Security Advisor Condoleezza Rice dismissed the failure by weapons inspectors to find evidence of an Iraq nuclear program, in advance of the 2003 US-led invasion of Iraq: “The problem here is that there will always be some uncertainty about how quickly [Saddam Hussein] can acquire nuclear weapons. But we don’t want the smoking gun to be a mushroom cloud.”21 This doctrine of “pre-emptive” self-defence was reasserted in a less emphatic manner in the 2006 edition of the National Security Strategy.22 Notably, the Caroline figured in all these discussions. Webster’s language of “instant” and “leaving no moment for deliberation” has 225

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been repeatedly resuscitated.23 Some states, for instance, used Webster’s language to criticize Israel’s conduct at Osirak,24 prompting a rebuttal from the Israeli ambassador: We have been reminded here of the Caroline affair. But that incident, as is well known — and the representatives of the United Kingdom and the United States will bear me out in this — occurred almost a century and a half ago. It occurred . . . years before Hiroshima. To try and apply it to a nuclear situation in the post-Hiroshima era makes clear the absurdity of the position of those who base themselves upon it. To assert the applicability of the Caroline principles to a State confronted with the threat of nuclear destruction would be an emasculation of that State’s inherent and natural right of self-defense.25

Like Ambassador Yehuda Blum, some critics now view Webster’s standard as too constraining. It stems from a time of steamships and six-pounder cannons. To give it too strict a meaning makes no sense in a world with nuclear-tipped intercontinental ballistic missiles and diffuse militarized terrorist groups, striking unpredictably from the shadows at a time of their choosing.26 But paradoxically, proponents of a sweeping concept of preemptive self-defence also sometimes find solace in the Caroline. Even while critiquing the invocation of the Caroline by other states, the Israeli ambassador to the United Nations stated in 1981 that Israel had the right to destroy the Osirak reactor in self-defence by pointing to three academic authorities, two of whom in turn relied on the Caroline.27 And even more directly, in the lead up to the 2003 Iraq War, US State Department legal advisor William Taft IV argued that the “president’s national security strategy relies on the same legal framework applied to the British in Caroline and to Israel in 1981. The United States reserves the right to use force pre-emptively in self-defence when faced with an imminent threat.”28 National Security Advisor Condoleezza Rice pointed to Webster’s language and argued that he “actually wrote a very famous defence of anticipatory self-defence.”29 In the United Kingdom, the then attorney general, Lord Goldsmith, also declared that the concept of “anticipatory 226

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self-defence” could be traced to the Caroline and was “not a new invention.”30 Indeed, there is even a deep-seated view that the Caroline was only about anticipatory self-defence. In its legal opinion justifying self-​defence in the Iraq War of 2003, the US Department of Justice painted the Caroline as the “classic formulation of the right of anticipatory self-defense.”31 Even more dramatically, in his dissenting opinion in the Nicaragua case at the International Court of Justice, Judge Stephen Schwebel asserted “that the narrow criteria of the Caroline case concerned anticipatory self-defence, not response to an armed attack or to actions tantamount to an armed attack.”32 In the subsequent Oil Platforms case, both Iran and the United States treated the Caroline as an example of anticipatory self-defence. Iran argued that the US conduct could be lawful only if it were anticipatory self-defence “as is legitimised under the Caroline formula.”33 The United States in response stated that, in the Caroline matter, the “British forces were not responding to a past attack. Instead, they anticipated the vessel’s possible use to support a future one.” Webster’s imminence standard did not apply “where an attack has already taken place.”34 This repurposing of the Caroline in discussions of anticipatory self-defence is astonishing. Webster did use the language of “instant” and “leaving no moment for deliberation,” and in using it, he clearly responded to the view common among the naturalist-inspired jurists influential in the period. These authors were of a common view that a defender need not await the fall of the blow before responding (though Grotius also warned that a plot alone was not enough to justify self-defence). And in 1838, the British law officers who opined on the Canadian raid did urge that it was justified on necessity as a measure of precaution for the future, and not as retaliation. This statement has sometimes been invoked as consistent with a preventive theory of defence.35 But the facts of the dispute contradict the view of the Caroline as a response to an anticipated attack. As noted earlier in this book, by the time of the boat’s destruction, the insurgents in whose employ the Caroline steamed had invaded and occupied an indisputable part of 227

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Canada — Navy Island — with several hundred men, whose numbers swelled daily. They were shelling other parts of Canada — densely settled — with a dozen cannons, also increasing in number daily. As noted earlier, jurists today dispute whether an “armed attack” must meet a gravity threshold, one that excludes passing frontier clashes. Still, it is hard to believe that any state would regard conduct with the persistence of the Navy Island occupation and the nature of the repeated shelling of mainland Canada as anything other than an ongoing “armed attack.” Commander Drew’s raid was indeed mounted to prevent further reinforcements from journeying to the occupied part of Canada, and from there across the Niagara River to the Canadian mainland. But this is best viewed as a tactical assault conducted during an ongoing armed conflict, not one designed to stave off an armed attack in the first place. Put in the language of a bar fight: by the time of the Caroline, the insurgents had been punching the Canadians about the body. The Caroline raid aimed to block a blow to the head. The law officers’ assertion in 1838 that the raid was directed at the future, and not in retaliation for the past, is no argument for pre-emption. It is more plausibly an argument for blocking blows that continued to fall, and clarifying that the raid was not punishment for blows already suffered. The raid was not a reprisal. The only thing novel about the raid was its passage onto US territory. On this issue, Lord Ashburton, in his missives to Daniel Webster, did seek to convey a sense of exigency: Commander Drew and his raiders had passed into US territory only upon unexpectedly discovering that the Caroline was not berthed at Navy Island. In fact, the record suggests that the raiders knew full well that the Caroline was in US territory. But even if the crossing into US territory at Schlosser, New York, had been done spontaneously by the raiders in the immediate moment, it was irrelevant to the question of anticipatory self-defence. The attack itself against which the raiders defended was unconnected with the precise positioning of the Caroline on 29 December 1837. Bottom line: the Caroline is most easily viewed as an effort to degrade a weeks’-old attack and its expansion, rather than as an attempt to forestall the first blows of a not-yet mounted assault. 228

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It is not clear how these facts of the Caroline were lost to many twentieth- and twenty-first-century jurists. As noted earlier in this book, the nature of the insurgent attack had been winnowed from the tale in some of the nineteenth- and early twentieth-century treatments of the Caroline; even in Robert Joseph Phillimore’s 1854 treatise and then, quite dramatically, in Lassa Oppenheim’s influential 1905 treatise. Moreover, in the Nuremberg tribunal’s deliberations on Germany’s invasion of Norway, the judges expressly invoked the Caroline while implicitly accepting that one state could use defensive force on the territory of another, if properly motivated by a sufficiently imminent threat. At least one modern jurist concludes that this use of the Caroline contributed to “the very prevalent opinion that the Caroline Incident is also the authority for . . . pre-emptive self-defence,” despite the absence of a factual foundation in the Caroline.36 It did not help that the International Military Tribunal’s cited source — John Bassett Moore’s 1906 Digest of International Law — itself relied on secondary sources misrepresenting the Caroline’s facts (or at least omitting key details). This “broken telephone” is traced in the flowchart in the Appendix. This pattern continues to the present day. For instance, the US Department of Justice opinion invoking a right to anticipatory self-defence in relation to Iraq in 2003 reproduced the facts of the Caroline without mentioning the occupation of Navy Island or the bombardment of the Canadian mainland.37 It is true that some jurists have since recognized the disconnect between the true circumstances of the Caroline and the subsequent deployment of Webster’s language as justification for anticipatory self-defence.38 But periodic corrections of the record that do not then shape the perceptions of those exercising state power matter little. Whatever the precise origin of the misunderstanding, the fact is that the Caroline has been used to lever open the scope of the “armed attack” “occurs” standard in article 51, and to justify states’ views on anticipatory self-defence. This development has not always been welcomed by the international community. The expansive Bush Doctrine, especially, was 229

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resisted,39 in part because of its perceived association with the (ultimately ill-grounded) weapons of mass destruction justifications offered for the 2003 Iraq war. Not least among its flaws, aggressively pre-emptive self-defence is particularly vulnerable to abuse. Lifting the constraining cap of imminence entirely would constitute a clear reversion to broad nineteenth-century concepts of self-preservation. As with the German invasions in the First and Second World Wars, this is a concept that can be used easily to camouflage most acts of aggression.40 And even if done in good faith, it runs serious risk of error. Self-defence responsive to an ongoing armed attack, or even one arriving across the horizon, leaves no doubt about the core issue: an armed attack. Pre-emptive self-defence of the Bush Doctrine type imagines only the future possibility of such violence. Assessing remote threats depends entirely on intelligence on prospective enemy intentions and means, a notoriously difficult basis for decision making. And forceful responses to remote threats built on inferences compound doubts about whether recourse to force is actually necessary.41 The more distant the threat, the more difficult to assert that hard power is the only means of averting the peril, meaning that pre-emptive self-defence also erodes the necessity standard in the Caroline formula. In consequence, ready acceptance of the Bush Doctrine would gravely undermine the historic restraints on use of force imposed by the UN Charter, with serious consequences for human security and global stability. The UN Secretary-General’s High-Level Panel addressed this issue persuasively in its 2004 report: “[I]n a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.”42 But this is also a world in which catastrophic attacks may be mounted on short notice. For this reason, the debate about preemptive self-defence is not over.43 In 2017, tensions between the Donald Trump administration and the rapidly nuclearizing North Korean leadership increased. As the Kim Jong-un regime continued 230

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to test long-range intercontinental missiles and to pursue efforts to tip them with nuclear payloads, Trump warned that threats to the United States would be “met with fire and fury like the world has never seen.” That sabre-rattling precipitated a similar round of verbal jousting from North Korea, and fear of escalating tensions. It also renewed debate about pre-emptive self-defence and, inevitably, about the applicability of the Caroline affair.44 All told, nothing better reflects the degree to which the Caroline case has morphed from a factually grounded historic event to a generalized, flexible, legal meme than these discussions of imminence in self-defence. At the same time, as discussed next, even the issues for which the Caroline affair indisputably stands have presented difficulties of application.

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Necessity and Proportionality Since 11 September, my Government has obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks. There is still much we do not know. Our inquiry is in its early stages. We may find that our self-defense requires further actions with respect to other organizations and other States. — John D Negroponte, US Ambassador to the United Nations (7 October 2001)1

I

n 1986, two American soldiers and a Turkish woman were killed by a bomb detonated in a Berlin discotheque, and more than 200 people were injured. That bombing was greeted enthusiastically by Libya’s leader, Colonel Muammar Gaddafi. The United States claimed, in addition, conclusive evidence of direct Libyan involvement in the bombing. Ten days after the terrorist killing, US warplanes bombed Libya, dropping sixty tons of munitions on mainly military targets, but also hitting some residential locations and killing an estimated thirty civilians — among them (allegedly) Hana Gaddafi, the Libyan leader’s daughter.2 In justifying its conduct, the US ambassador to the United Nations argued that the United States acted in self-defence against Libya’s “continued policy of terrorist threats and the use of force, in violation of . . . Article 2(4) of the Charter.”3 The United States stated that it had exhausted all peaceful means of trying to change Libya’s behaviour. It confronted, however, an “ongoing pattern of attacks” by Libya against US citizens and installations, and claimed it had evidence of future planned terrorist actions. Its 233

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military response was necessary, therefore, to deter Libya, and the US strike, aimed at military infrastructure, was proportionate.4 This justification failed to sway most of the world’s states, a fact illustrated most starkly by a condemnation of the US attacks in a resolution of the UN General Assembly.5 A disapproval of the US actions was also proposed in the Security Council, but it was vetoed by the United States, the United Kingdom, and France.6 States were generally concerned with the weakness of the evidence linking the bombing to Libya,7 but the self-defence assertion also measured poorly against article 51 and the Webster formula, especially the requirement of necessity and proportionality. These are the least contentious elements of Webster’s Caroline formula. In his 1841 letter, Webster declared that there must exist a “necessity of self-defense, overwhelming, leaving no choice of means.” This “necessity” element of the act of self-defence is now construed as meaning force must be necessary to respond to (and repel) the threat. There is no such necessity where other means exist to resolve the peril.8 But where the threat remains, the mere passage of time does not itself vitiate the right to self-defence. It may persist, even if it takes the defending state time to marshal its forces — such as with the Falklands War in 1982.9 The necessity standard is not met, however, where a state chooses to direct force at objectives considered targets of opportunity.10 Nor does it exist where force is used after the supposed danger had been repulsed.11 Where this happens, force has been used as a reprisal, not in self-defence. For critics of US conduct in the 1986 Libya matter, the US bombing bore a closer resemblance to a punitive reprisal,12 like the Italian shelling of Corfu in 1923, than it did to an act of defence designed to stave off an attack. Since the Libya bombing, military responses to terrorism have regularly provoked controversy over whether they are truly “necessary” to repel the attack, or whether they were simply retaliatory.13 The issue arose even in the wake of 9/11 in 2001. After 9/11, the American-led invasion of Afghanistan, Operation Enduring Freedom (in which Canada participated),14 was specifically justified by the United States as an act of self-defence, responsive to an “ongoing threat” and “designed to 234

Chapter 29: Necessity and Proportionality

prevent and deter further attacks on the United States.”15 Such justification was plausible in the immediate aftermath of the attack, given the uncertainty of the period. But the US failure to ground Operation Enduring Freedom in a UN Security Council resolution prior to its October 2001 invasion forced the self-defence justification to do all the legal work, in the then relatively novel circumstance of use of force against a terrorist group. As compared to the subsequent US invasion of Iraq in 2003, Operation Enduring Freedom was only modestly controversial. There is reason to believe that the Security Council might have authorized the initial use of force — indeed, some scholars argue it signalled a willingness to do so.16 The Security Council’s blessing would have obviated doubts about the invasion’s legality,17 including questions about whether it was necessary to repel an ongoing attack.18 Additionally, that invasion did more than displace Al-Qaeda in Afghanistan — it also resulted in the removal of the Taliban government, not itself implicated in the 9/11 armed attack. While that regime is hardly mourned, the scale of this result raises issues of proportionality.19 In 1841, Webster wrote that the defender must do “nothing unreasonable or excessive” and must keep clearly within the necessity impelling the defence. The resulting concept of proportionality is tied to the necessity motivating the act of self-defence. It is usually taken to mean use of force in self-defence no greater than that required to halt and repel the danger; that is, proportional to the necessary military objective of countering the threat.20 For some jurists, however, proportionality is assessed against the scale of an armed attack triggering the defence,21 at least for limited clashes of arms. These are quite different measures. Assessed against the second standard, for instance, the response to an armed attack may become disproportionate if the consequences of the response (in civilian casualties, for instance) outstrip those of the original assault. Assessed against the first standard, armed force is proportional if properly directed at dislodging the attacker and thus averting the occurrence or recurrence of the attack. In these circumstances, outright destruction of an enemy’s army may be the proper objective. It is possible, therefore, to conceive of a governmental regime change as also quashing a recurrence of an armed attack. But greatly stretching 235

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the concept of proportionality is risky, compounding doubts about the necessity of the forceful response. Specifically, regime change justified as necessary to stave off renewals of attacks risks legitimating long-term occupations, either direct or managed through proxy governments. For these sorts of reasons, it is regrettable that the United States and its allies sought no Security Council authorization for their use of force in Afghanistan in October 2001. This would have precluded the need to pound the square peg of Operation Enduring Freedom into the round hole of necessity and proportionality in self-defence.

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Unwilling or Unable If the Americans either cannot, or will not, guard the integrity of their own soil, or prevent it from becoming the common arsenal and recruiting ground of outlaws and assassins; if they cannot even prevent the National Artillery of the United States from being carried away publickly at midday by pirates, to be used for the destruction of a neighbouring and friendly people; have they a right to expect that the soil of the United States will be respected by the destined victims of such unheard of violence? — Henry Stephen Fox, British Ambassador to the United States (19 January 1838)1

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ore recently, use of military force in response to terrorist groups has galvanized debate over yet another matter for which the Caroline affair serves as a signpost. In March 2015, then Canadian defence minister Jason Kenney justified the dispatch of Canadian fighter jets to fight the terrorist insurgency Daesh (ISIS) in Syria. By that point, Daesh occupied much of northern Iraq and eastern Syria, with the intent of spreading further. It would soon be responsible for terror attacks in Europe, most notoriously at a concert hall in Paris in November 2015, where hundreds were killed and wounded. Thereafter, the Security Council (obliquely) suggested that states might use force against Daesh in Iraq and Syria, without clearly authorizing such use.2 In the absence of a surer Security Council authorization, lawful use of force in Syria in March 2015 (and even at the time of this writing) depended on self-defence. And in fact, Canada’s actions were justified, Minister Kenney argued, under article 51 of the UN Charter as an exercise of collective self-defence done in assistance of the Iraqi government. The Bashar al-Assad government in Syria was not a member of the alliance, and was at odds with much of the world 237

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and with a mix of Syrian insurgent groups. The Canadian defence minister argued strikes could legally be launched against Daesh in those parts of Syria that the Syrian government was either “unwilling” or “unable to control.” It was a very “clear principle of customary international law,” said the minister, that self-defence may be exercised “when a sovereign government is unable or unwilling to control part of its territory from which hostile acts are being launched.”3 Minister Kenney’s words, however unconsciously, echoed the precise position — and in one case, the precise vocabulary4 — of the British in the Caroline matter. His view was also consistent with the American position justifying “defensive” incursions into Florida in 1818 and Mexico in 1836. Such positions also recurred later in the nineteenth century. In the 1880s, for instance, British law officers opined that the British could exert power in Turkish waters to repress piracy, given Turkish “neglect or inability.”5 The law officers characterized the British intervention, not as a reprisal, but “simply as necessary for the protection of life and property, in the continued absence of the maintenance of authority by the Power on which that duty would more naturally devolve.”6 More critically, similar positions had been advanced even after the UN Charter. During the post– Second World War period, Israel adopted an “unwilling or unable” standard to justify actions against the Palestine Liberation Organization in Lebanon and against Hezbollah in Lebanon and Syria. The United States invoked the doctrine against Al-Qaeda in Sudan, Afghanistan, and Pakistan, while Russia used it against Chechen rebels in Georgia, and Turkey used it against the Kurdistan Workers’ Party in Iraq.7 In total, a recent survey identified thirty-nine instances between 1817 and 2011 where armed attacks attributable “entirely or primarily to a nonstate armed group or a third state” prompted a military response from a victim state on the territory of another state that had not consented to this incursion.8 Despite this state practice, whether “unwilling or unable” is truly part of customary international law has been hotly debated. The debate echoes some of the concerns from the Caroline incident. Where a state embarks on an armed attack against another state, the locus 238

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of the response in self-defence is reasonably clear: the attacking state has territory, and the victim state’s right of self-defence serves as an obvious exception to the attacker’s rights to territorial sovereignty, subject to the provisos of necessity and proportionality. In comparison, insurgents are not territorial sovereigns. However, directing military force against a non-state actor almost always requires use of force on the territory of some state. During the Caroline incident, the issue was violation of neutral territory. Now, using force on the territory of another state violates the UN Charter’s prohibitions, even if tied to the purpose of suppressing an insurgency and not attacking the state itself — article 2(4) of the Charter has that broad a reach.9 In more recent times, non-state actors (and, specifically, terrorist groups such as Al-Qaeda, Daesh, and Al-Shabaab) have operated from the territory of states that are either unwilling or unable to suppress these terrorist activities, but that are not directly responsible for them. Unquestionably, where a state consciously declines to suppress terrorist activity on its territory, it violates its international obligations,10 is complicit in, and potentially has international responsibility for, attacks mounted by such groups. Where a state is incapable of suppressing these activities, that lack of capacity does injury to another state, again raising questions of responsibility. And, yet, uncooperative or under-resourced state (mis)conduct does not itself meet the definition of an “armed attack” justifying military force used in self-defence. That is, the breach of a state’s international anti-terrorism obligations does not graduate to conduct that, under the UN Charter framework, justifies self-defence. Still, there is serious incongruity in the idea that a non-state actor may use violence rising to the level of armed attack, and then may hide behind the territorial sovereignty of a state that, however unwillingly or unwittingly, serves as the host. There is a compelling argument that use of force on the territory of the incapacitated state is, in these circumstances, “necessary” within the meaning of the Webster formula. That was certainly the lesson of the Caroline, one now dimly remembered. The international community has demonstrated more receptivity — although certainly not enthusiasm — for this approach since 239

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9/11 and especially since 2014.11 Events in Iraq and Syria and the conflict with Daesh have drawn more states, such as Canada12 and Australia,13 into the category of those prepared to apply the “unwilling or unable” approach, justifying use of force against Daesh in Syria even without the consent of Syria’s Assad regime. The United States14 and Turkey15 have reaffirmed the existence of an unwilling or unable doctrine in Syria, without much protest. Indeed, in response to the US notification to the United Nations, then UN Secretary-General Ban Ki-moon reportedly stated: “I also note that the strikes took place in areas no longer under the effective control of that [the Syrian] government.”16 Belgium17 and Germany18 have made similar statements in justifying their uses of force. In their letters to the Security Council on use of force in Syria, Denmark,19 Norway,20 France,21 and the United Kingdom22 have invoked self-defence under article 51, without further explanation. Other states, such as Jordan, Bahrain, Qatar, and the United Arab Emirates, have participated in air strikes in Syria without articulating legal justifications, leading at least one commentator to posit they are “relying on the same legal theory as the United States and UK.”23 Still, the Arab states are far from consistent in their practice and position, having condemned Turkish incursions into Iraq built around an “unwilling or unable” theory.24 And some jurists, parsing overall state practice, continue to doubt that the “unwilling or unable” doctrine has any status in international law, declining to see in the Syria case a “sincere and genuine” commitment to the norm’s legal status.25 Moreover, some states — Russia, Venezuela, Ecuador, Iran, Cuba — have expressly doubted the legality of the anti-Daesh coalition’s activities in Syria, while states such as China have raised more oblique concerns about infringements of Syrian sovereignty.26 It is hard, however, to dismiss accumulating state practice favouring self-defence against insurgents in failed or uncooperative states. And in the case of such states as the United States, Turkey, Canada, Australia, Belgium, and Germany, there is an expressed belief that the “unwilling or unable” doctrine (or Syria’s lack of “effective control”) is a basis for invoking self-defence. Some states — Belgium, Germany, Denmark, Norway, and the United Kingdom — have 240

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simultaneously also noted a 2015 UN Security Council resolution that is creatively indefinite about the legal authority for directing force at Daesh in Syria. That resolution departs from the conventional practice employed in Security Council resolutions authorizing hard power. It therefore encourages use of force without unambiguously authorizing it.27 Unlike some earlier Security Council resolutions — such as that issued in the wake of 9/1128 — the 2015 instrument does not mention self-defence. But even so, by encouraging without authorizing, it obliges states in the anti-Daesh coalition using force in Syria to ground their conduct in the only other source of lawfulness: self-defence. In this manner, the Security Council’s resolution may steer state practice and add lustre to those construals of self-defence encompassing an “unwilling or unable” theory. State practice of what is less clear. It is one thing to intrude on a state’s territory to exercise self-defence strictly limited to the attacking insurgency, as occurred in the Caroline incident. It is quite another to stray beyond this terrorist-specific targeting and direct force against the territorial state’s own assets or infrastructure — something much closer to the conduct of the United States in Florida in 1818. The risk of such overbreadth might be best policed through strict adherence to necessity and proportionality concepts.29 But whether this will work is a question of considerable consequence. In Syria, the international forces fighting Daesh are not in armed conflict with the Syrian government. But in that war, the near proximity of contesting factions fighting both an internal civil war and a battle against Daesh, often at the same time, makes battlefield application of this standard complex. This witch’s brew of overlapping conflicts runs the risk of a broader conflagration. Moreover, as was threatened in the Caroline dispute itself, the territorial state that reasserts itself might reasonably treat the presence of a foreign force on its territory as exactly the armed attack justifying its own exercise of self-defence. In these circumstances, competing legal justifications open the door to doubtful tit-for-tat claims of self-defence against self-defence. Here, the primary restraint is exactly that which nineteenth-century jurists proposed for Caroline situations: it is far wiser to regard the “preventive” 241

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presence of foreign forces as friendly rather than as hostile acts.30 It is one thing, however, to imagine that approach applied to a fleeting incursion by Canada in the United States in 1837; it is quite another to hope it will endure during a protracted conflict implicating more implacable rivals, some of whom seek to fracture the Syrian state. Put another way, the rediscovery of the Caroline’s facts to solve one problem — what to do about insurgents attacking from a semifailed state — opens the door to another complication. Is the unwilling or unable justification a one-way ratchet that cannot be notched back because the delinquent territorial state has a change of heart or capacity? If that is the legal argument, it amounts to claiming that once a failed state whose sovereignty has been suspended, always a failed state with a suspended sovereignty. By this logic, the Canadian militia assembled on Niagara River in 1837 and 1838 to contest the Mackenzie insurgency could properly have resisted US General Winfield Scott’s efforts to reassert governmental control over upstate New York. They might reasonably have argued that Scott’s suppression amounted to “catch and release,” simply displacing insurgents to attack Canada up and down the frontier. The Canadians almost adopted this approach, preparing to use force against the steamboat Barcelona in 1838 to capture suspected insurgents. Firing on Scott’s vessel would have been politically disastrous — but it would have been legally justifiable under some of the theories now advanced in the Syrian context.31 This does not seem the sort of position likely to increase international stability or avoid capricious misuse in the future. At the very least, events on the ground in Syria clearly demonstrate the risk of predicating use of armed force on a fuzzy doctrine like “unwilling or unable.” States do not always remain unwilling or unable, especially when they perceive their interests as being impaired by a defensive campaign. The downing by the United States of a Syrian fighter jet in June 2017 sharpened concerns on this point. How the matter will play out remains uncertain. And uncertainty on this and all the other issues canvassed in this part must be considered in evaluating the Caroline’s legacy.

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The Caroline’s Legacy The hell with international law. It’s just a series of precedents and decisions that have been made in the past. But this is a unique situation and this is one in which one can, and should, make international law rather than just follow past precedents. — Dean Acheson, US Secretary of State, during the Cuban missile crisis (1962)1

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he Caroline has mattered, but how it has mattered may be disputed. Webster’s 175-year-old formula has managed the difficult feat of constructive ambiguity. In modern international law, it has been imagined and reimagined to corral states and their uses of force. These constraints disproportionately affect more powerful states inclined to use military power.2 But, still, both in its vocabulary and its practical effect, the Caroline formula has not been so constraining a standard as to truly cage use of force in international relations. Opinions will divide on whether this has been a good thing or not. The outsized function played by self-defence and the Caroline in international relations reflects the unsatisfactory role played by an often-paralyzed UN Nations Security Council in performing its responsibilities of ensuring international peace and security. The Caroline filled a vacuum, as self-defence took centre stage in regulating war and peace.3 Stephen Neff bemoans the consequence in his magisterial treatise on war and law: “Self-defence claims blossomed so luxuriantly, and expanded in so many directions as effectively to encompass any arguably justifiable resort to force.”4 243

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It is hard to dispute this claim. When negotiators assembled at the San Francisco conference near the end of the Second World War to finalize the UN Charter, the US delegation included Archibald MacLeish, Pulitzer Prize–winning poet and then Assistant Secretary of State for Public and Cultural Relations. Participating in the discussions leading to article 51, and pointing especially to the vague concept of armed “attack,” MacLeish predicted the formula devised for that provision would be regretted “as long as the memory of the Conference lasted.”5 Self-defence, he observed, “was the way this war started, using defense as an excuse.”6 As Neff argues and this book demonstrates, since then, self-defence and the Caroline have been invoked to justify armed responses to threats both on the distant horizon and also receding into the past, and not just threats that amount to true armed attacks on a state’s territory. Decontextualized invocations of the Caroline have, in some hands, made it near-indistinguishable from the self-preservation concept justifying the British conduct at Copenhagen in 1807. It is difficult to differentiate, for instance, the views of British statesmen defending that preemptive nineteenth-century strike, designed to prevent Napoleon from acquiring a fleet, from those of stateswomen like Condoleezza Rice, reimagining self-defence for a period where the feared “smoking gun” of an attack is a mushroom cloud. These broad visions of self-defence are all fiercely contested, conveying the absence of certainty. Uncertainty is generally considered a disadvantage. On the other hand, it is difficult to imagine an alternative, in a world where the Security Council continues to malfunction and every individual state retains, in practice, a monopoly on use of force. Martti Koskenniemi has argued, correctly, that self-defence is amenable to a more careful definition. The impediment is not our imagination; it is, instead, that excessively refined definitions would be undesirable. There is virtue in indeterminacy.7 Already, critics regard the UN Charter, encumbered with a vetoprone Security Council, as too constraining, precluding hard power used in support of humanitarian objectives. In the 1999 Kosovo air war designed to repress Serb ethnic cleansing in Kosovo, the result was a conflict unauthorized by the immobilized Security Council but 244

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still impossible to square with self-defence. The NATO countries that participated in that conflict did so anyway, in circumstances that were described as “illegal but legitimate.”8 The American airstrike disabling Bashar al-Assad’s effort to use chemical weapons on his domestic enemies in April 2017 falls into this same category — there was no Security Council authorization, and no plausible self-defence claim, but the imperative for using force was considerable. As these examples suggest, self-defence cannot carry all the world’s legal water in matters of conflict. But in a world like this, the imprecision of Webster’s self-defence formula may be a strength. As I have argued in this book, Webster reached for a Goldilocks point reconciling different objectives to solve an immediate political dilemma. That balancing has, it turns out, produced a pliable doctrine capable of bending without snapping. Webster’s formula has satisfied US Secretary of State Kellogg’s 1928 warning that too exact an understanding of self-defence would make it “far too easy for the unscrupulous to mold events to accord with an agreed definition.”9 At the same time, too demanding a definition would provoke violations where the doctrine was ill-suited to the legitimate needs of states. States will not tarry over legal formalism when supreme security interests are at stake. Of course, such pragmatic realpolitik is an unappealing justification for ambiguity in a multipolar world where many states may now be able to partake in potentially destabilizing uses of force. A vagueness too accommodating of raison d’état would abandon legal formalism without superimposing workable guidelines that regulate force. For this reason, some jurists believe that rigour of definition should be the objective. For instance, Antonio Cassese argued in relation to anticipatory self-defence that it was better for the rule to be firm and limiting, while admitting that violations might still be justified on moral and political grounds.10 But the cost of that approach may exceed the benefit. Such a strategy would produce regular recourse to “illegal but legitimate” justifications for force, a development relaxing whatever constraining influence the “grammar” of international law exercises. Slang, repeated often enough, becomes the new vernacular, and a habit of violation risks becoming the new normal. 245

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There is no easy way out of this impasse. But in another context, W Michael Reisman and James Baker have described the “myth system” of international law—that is, its doctrine — and juxtaposed it with the quite different state practice. Reconciling the doctrinal myths of international law with this “operational code” means “that determinations of lawfulness in particular cases must . . . use a more comprehensive, consequentialist, and policy-sensitive approach.”11 The Caroline formula has survived because it allows precisely this. States have not repudiated the UN Charter use of force rules or disputed the idea that self-defence is a constrained concept. The formula associated with the Caroline continues to structure how the world talks about self-defence, and self-defence is the common way states now talk about use of force. The Webster test proposes a universal standard, stable between states and across governments. In that sense, it constitutes the shared grammar for understanding defensive use of force. But that Caroline grammar does not exercise precise control over the vocabulary. Like any grammar, it is conservative, disciplining novelty, but at the same time versatile enough to allow for evolution. States do differ in the emphases they place on Webster’s elements and debate their meaning. Indeed, as this book has suggested, both defenders and opponents on questions like preemptive self-defence have found support in the Caroline. As governments come and go, some may be willing to place a heavier thumb on those variables permitting a wider range of state use of force. But even so, the grammar can bear only so much departure from the norm, and international lawyers apply a common language in debating state conduct, judging it by criteria other than realpolitik. The Caroline gives us something to argue about, beyond the respective sizes of armies. How much this matters is an impossible question. Whether the world would be worse without the Caroline is an empirical question defying analysis. There is no control group; there is no world without the Caroline doctrine. In consequence, whether the world is better because of it is also an impossible question. But as this book began by arguing, wars between states are now more infrequent than before.12 246

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And as Oona Hathaway and Scott Shapiro demonstrate conclusively, territorial conquests are almost unknown: where once the average state could expect a conquest once in a human lifespan, that prospect has now fallen to “once or twice a millennium.”13 Correlation proves nothing, but it is a fair hypothesis that the UN Charter framework (built on the outlawry of war in the Kellogg-Brand Pact) has helped stabilize international relations between states, more numerous than ever.  The outcome has been imperfect; but nevertheless, force between states done without lawful justification is anathema. It makes a difference that those resisting the march to war can claim such conduct to be not just unwise, but illegal. Just as in the Caroline dispute itself, states worry about legitimacy, even when determined to act forcibly. The British conduct in the Suez Crisis in 1956 constituted a transparent departure from the Charter, but the contested legal questions arguably affected the United Kingdom’s approach to foreign policy and force thereafter.14 When Russia used force in Ukraine in 2014, in violation of international law, it did not sweep through the country in motorized brigades and displace the Ukrainian government, a traditional tactic it surely would have preferred. Instead, it pursued an ultimately implausible course of legal deniability, dispatching special forces units stripped of insignia — a corps of “little green men.” And in annexing Crimea, it tried (unartfully) to bring its conduct within the envelope of the international law on self-determination. Its subsequent inability to persuade others of the lawfulness of this conduct has been consequential, providing the intellectual grease for sustained economic sanctions. Likewise, when US President George W Bush contemplated use of force in Afghanistan in 2001, he reportedly said: “I don’t care what international lawyers say, we are going to kick some ass.”15 That conflict was, nevertheless, justified on self-defence, not uncontroversially, but credibly. The international community rallied to the fight. Even in 2003, in planning a war in Iraq, the Bush administration and the Tony Blair government in the United Kingdom sought to justify their conduct with an array of shifting international law positions,16 including self-defence.17 These legal questions complicated US internal deliberations, much to the disgust of some administration officials urging 247

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an earlier intervention.18 The invasion proceeded, even without a legal foundation broadly accepted by the international community. But widespread doubts about the lawfulness of the invasion, including among close US allies, increased the political and material costs of the war for the United States. Bush’s successor, Barack Obama, recognized this and urged in his 2009 Nobel Prize acceptance speech that “America — in fact, no nation — can insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our actions appear arbitrary and undercut the legitimacy of future interventions, no matter how justified.”19 During his term, Obama’s own uses of force through drone strikes raised disputed questions of legality, heavily parsed and considered by administration lawyers deploying concepts attributable, at least partially, to the Webster formula.20 And in at least one instance — forcible intervention in the Syrian civil war — Obama chose not to resort to force in part because there was no international legal basis to do so.21 Given these anecdotes — and there are others — it is difficult to agree that the UN Charter’s use-of-force rules are malleable to the point of incoherence, or that they have collapsed.22 However, they certainly have not worked as intended; and in practice, the members of the international community have not adopted the strictest construal of them advanced by some jurists. As this book has illustrated, this is especially true of article 51 and self-defence. But to bridge the shortcoming of a UN Charter collective security regime dependent on an unwieldy Security Council, the world has adopted an old, pliable doctrine of self-defence, indexed to the Caroline (or at least a mythical rendition of it). Whatever its sweep and creep, the threelegged stool of the Webster formula has contributed to the essential purpose of all international law in war: it has constituted an obstacle. This does not stop wars. And it will only remain a hurdle to the degree those in political office care about legitimacy. On that issue, there are reasons to worry. Not least, the Donald Trump administration’s approach to date suggests it has a very different relationship with the law than did its predecessor. But so far, the Caroline has served as grit on a quick slide to war for at least the majority of 248

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countries inclined to persuade others of the merit of their cause, and avoid the stigma of aggression. That is a considerable accomplishment for a raid mounted by a handful of militia members on a cold night in December 1837.

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The Protagonists’ Fate As a naval officer, drawing near to the close of a long life spent, as I trust, not without credit in the service of my country, I address your Lordship in the confident hope of obtaining a candid and favourable consideration of a claim . . . That claim is one for indemnity against losses brought upon me by the performance of a difficult and important duty. — Rear Admiral Andrew Drew to Viscount Palmerston, Prime Minister of Great Britain (3 November 1863)1

T

o the immediate north of Buffalo, New York, on the Canadian side of the Niagara River, a plaque marks the spot where William Lyon Mackenzie fled Upper Canada in December 1837, to renew his insurgency among his American supporters. That brief memorial reveals nothing of his fate, or the consequences of his actions. After his occupation of Navy Island failed in January 1838, Mackenzie opposed further invasion attempts by the insurgents and their “Patriot” supporters, seeing them as disorganized ventures that simply drove persecution of reformers in Upper Canada. His influence while in exile in New York State soon waned. In 1839, a US court convicted him of violating the US neutrality law. Beset with financial difficulties and in ill health, he was pardoned in less than a year after President Martin Van Buren responded to domestic political pressure.2 Mackenzie then worked as an itinerant journalist in New York State. Among his publications was The Caroline Almanac — described by the Canadian Newspaper Directory in 1892 as “a curious publication altogether. On the cover was a picture of the steamer Caroline as she was going over Niagara Falls, and in the foreground was a prostrate 251

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figure, supposed to be the dead body of Amos Durfee lying on his face on the wharf at Fort Schlosser, NY.”3 The fanciful engraving also showed several people near the steamboat’s bow, holding out their hands in appeal. Mackenzie’s Almanac contained a colourful and woefully inaccurate account of the Caroline raid that also alleged that stranded crew died, murdered as the vessel “hurried over the Falls to be crushed in everlasting darkness in the unfathomed tomb of waters below.”4 (Referring to the Almanac or some other Mackenzie journal, Ambassador Stephen Henry Fox in Washington described it as having a large circulation at the frontier, and as “conducted in a tone of extreme and unscrupulous violence and atrocity, but not in general with much ability.”5 It is difficult to object to this characterization.) As Mackenzie struggled in exile, reform was in the offing in Canada — Lord Durham was dispatched to the colonies from Britain and proposed the fusing of Upper and Lower Canada (to the demographic disadvantage of the French-Canadian population, now at risk of being absorbed into the growing English sea). Though responsible government did not follow for almost another decade, the subsequent, conjoined colony’s constitutional structure eventually met the reformers’ ambitions, and in 1849, the Robert Baldwin and Louis-Hippolyte LaFontaine Canadian government granted amnesty to the 1837 rebels. Mackenzie returned to Canada, and in 1851 successfully ran for a seat in the new legislature. After a tumultuous seven years in office championing reformist causes, he resigned, dying two years later in 1861.6 Britain confederated Canada with its Maritime colonies on 1 July 1867, and the new British North America Act granted Canada a constitution “similar in principle to that of United Kingdom.” Responsible government has been a feature of Canadian democracy ever since. Mackenzie’s Patriot allies enjoyed less happy fates. Thomas Jefferson Sutherland, one of the architects of the Navy Island occupation, was captured in the battle at Point Pelee in 1838. He was court-martialled by the British, and sentenced to transportation to Australia. After protracted pleas to British notables, he was returned to the United States, where he continued to agitate for the Patriot cause, before migrating west and dying in 1852 of typhus fever in 252

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Iowa.7 For his part, Rensselaer Van Rensselaer, the “general” at Navy Island, spent six months in jail following a conviction for violating the US neutrality law — he had led the (disastrous) 1838 Hickory Island attack and was arrested days after by US marshals. He played no further role in the insurgency, and committed suicide by inhaling carbon monoxide from charcoal gas in 1850.8 Winfield Scott — the American general dispatched in 1838 by President Van Buren to pacify the American side of the Niagara frontier — had a longer and more colourful life, commanding forces in the 1846 war with Mexico and reaching the rank of lieutenant-general (the first officer to do so since George Washington). His fame renewed, Scott turned to politics in 1848, but lost the Whig Party’s nomination for president in both that year and in 1852. Scott’s last military role came during the early years of the American Civil War, a conflict in which he was soon shunted aside by younger generals. He died in 1866.9 On the British side, Francis Bond Head, the lieutenant-governor of Upper Canada during the 1837 rebellion, left Canada in March 1838, feted as a hero throughout British North America for his stout resistance to republican rebellion. His departure was itself an act of drama. Head was despised by the Patriots on the American frontier, and so concluded it would be both more prudent and fitting to leave the continent via Halifax, rather than New York City. Assemblies in the colonies planned accordingly, with some intending to welcome him along his route for the resistance Head had “offered to ‘responsible government,’ and to the formation of that ridiculous anomaly, ‘a Provincial Cabinet.’”10 Other more dissident elements in Lower Canada reportedly planned to murder him if they could. Upon reflection, Head chose to return to England via New York after all, but only in secret. And so, feigning a route through Quebec City, Head crossed into New York and from there down the Hudson River to New York City. There, after socializing with several “American citizens of the highest character,” Head departed for England after slipping by carriage through an “immense crowd” assembled to witness his embarkation.11 253

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He never served in public office again. What Head did do was write. In 1839, in a breach of protocol, he assembled his official dispatches from Upper Canada into a volume titled A Narrative — a defence of his service as lieutenant-governor. In 1847, he wrote his memoirs of his time in Canada — a pastiche of travel diary and political commentary titled The Emigrant.12 (That book included a chapter memorializing his secretive Canadian departure, fittingly titled “The Hunted Hare.”) He spent the balance of his days authoring now long-forgotten essays, political tracts, and travelogues on an array of subjects, and occasionally inveighing against British policy in North America. The British government rewarded Head with a literary pension in 1853, but nothing for his Canadian service. That was recognized only when Head was named a privy councillor in 1867, the year of Canada’s confederation as a single entity. Head died in 1875.13 Most of the diplomats who negotiated the settlement of the dispute also soon disappeared from history. Henry Stephen Fox, the colourful British ambassador to Washington during the dispute, knew that with Lord Aberdeen assuming office as foreign secretary in 1841, his diplomatic career was over. Fox was largely sidelined in Washington after the arrival of Lord Ashburton in 1842. (Fox expected the banker to report his gambling and financial difficulties to his superiors.)14 Britain ended Fox’s diplomatic appointment in 1843, and he was recalled. He chose, however, to remain as a private citizen in Washington. He died there of a morphine overdose in 1846,15 aged fifty-six. Most of the American officials with whom he had dealt also died soon after the dispute. Secretary of State John Forsyth’s public service ended when the Harrison administration assumed office in 1841. When Harrison died, Forsyth was one of four former cabinet members among the president’s pallbearers, and the former secretary of state himself died months later.16 The president he had served, Martin Van Buren, returned to New York, where he became increasingly vocal in opposing slavery, running unsuccessfully as a third-party candidate in the 1848 presidential election. He died in 1862, a year after the beginning of the Civil War. His successor after Harrison’s death, John Tyler, ran afoul of party politics over economic policy matters, 254

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was expelled from his party, and resisted impeachment efforts. Running as a third-party candidate, he was defeated in the 1844 election. Tyler remained active in public affairs, contesting, fruitlessly, Southern secession. He ultimately abandoned hope of preserving the union and became a member of the Confederate House of Representatives, dying in the same year as Van Buren during the Civil War.17 Henry John Temple (Viscount Palmerston) — Britain’s irascible foreign secretary during much of the Caroline dispute — had a longer career. A regular irritant to his successor Lord Abderdeen while in opposition between 1841 and 1846, Palmerston assumed the foreign office for a third time in 1846 and again pursued a foreign policy that was sometimes provocative to great powers and overbearing with small states. Palmerston was pried from the foreign office in the early 1850s and then consumed with fractious partisan maneuverings with his rival Lord Aberdeen, then prime minister. But Palmerston himself assumed the premiership in 1855 at age seventy, after controversy over the government’s management of the Crimean War. Aberdeen never held office again, and died in 1860. After being briefly turned from office again in 1858, Palmerston formed a second government in 1859. He was Britain’s prime minister during the American Civil War and through a period of renewed British empire building. He died in 1865.18 The man that Palmerston derided for his 1842 boundary settlement, Alexander Baring (Lord Ashburton), returned to retirement, and died in 1848.19 His chief American interlocutor, and the person whose name is most closely associated with the Caroline, Daniel Webster, left the Tyler administration in 1843 and returned to the Senate in 1845. There, he continued to voice his suspicion of American expansion and war, in this case with Mexico. Swept up in the sectional crisis over slavery in the expanding territories, he supported the 1850 “compromise” that tried, imperfectly, to reconcile the South and North on the question of slavery in the union. He served as secretary of state again from 1850 to 1852 in the Millard Fillmore administration and had presidential ambitions of his own. Thwarted in this goal, Webster died in 255

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1852, his reputation marred by his support of the 1850 compromise. His renown was restored, however, by renewed interest among later generations in his eloquent oratory and American nationalism.20 His lawyerly skill is memorialized in the 1937 short story by Stephen Vincent Benét, “The Devil and Daniel Webster.” The Canadians who figured in the Caroline raid and its aftermath are not as well remembered. Alexander McLeod — wrongfully accused of being among the Caroline raiders in the 1841 trial that brought Britain and the United States to the brink of war — raised a family in the Niagara Falls region. He spent several decades petitioning Britain, Canada, and the United States for a payment to compensate him for an imprisonment that he claimed ruined his “health and wealth.”21 Despite support from the Canadian legislature22 and former lieutenant-governor Head,23 Britain denied any liability for his mistreatment, and the American government regarded his lobbying of US officials as more troublemaking.24 Nevertheless, the British law officers opined that the United States was liable for its egregious violation of international law associated with the New York trial.25 The British government eventually submitted McLeod’s treatment to arbitration in the British-American complaints settlement system created by treaty in 1853. But the arbitrators split along national lines on the matter of whether the tribunal had jurisdiction. And after referral to an umpire, the claim was denied on the basis that the dispute between the two countries had been settled by the Webster-Ashburton exchange of letters.26 Nevertheless, McLeod’s biographer reports that McLeod was finally recognized with a pension in 1855.27 He died in 1871.28 The militia members who fought the Navy Island insurgents had equally mixed fortunes. Like Mackenzie, Allan Napier MacNab, the militia leader at Chippawa in 1837, would go on to play a notable role in the colony’s future. He was knighted in recognition of his services during the rebellion. In addition, the Upper Canada legislature voted its thanks to the colonel.29 MacNab went on to a long (if often turbulent) political and business career in pre-Confederation Canada, dying in 1862.30 256

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Lieutenant John Elmsley, one of the boat commanders during the Caroline raid, also left a mark on the province. He left Chippawa soon after the Navy Island incident to take up command of a steamer in the hastily formed provincial marine, but resigned (in some controversy) after he was given a position in that service lower than he believed warranted (and subordinate to that of Andrew Drew). Thereafter, he concerned himself mostly with a successful business career and as a patron of Catholic institutions in the Toronto region. He died in that city in 1863.31 Lieutenant Shepard McCormick — commander of one of the raiders’ boats and wounded onboard the Caroline — survived his immediate injuries and also received a pension for his service32 but never fully recovered and died a few years later from the effects of his wounds.33 Captain Edgeworth Usher — whose residence on the Canadian side of the river was shelled from Navy Island in the days before the raid — was assassinated on 11 December 1838.34 American authorities had fingered Usher as a participant in the Caroline raid, and Usher had received death threats.35 Two Americans said to have been on the Caroline — one of whom was said to be a brother to a man killed in the raid — were the alleged culprits.36 Andrew Drew, commander of the Caroline raid, may have been the intended target of this murder. In Drew’s memoir, Usher’s murder followed an aborted assassination attempt on Drew himself — Americans had posted a considerable reward for Drew’s death37 and at least one Buffalo newspaper counselled his assassination.38 This was one of two such efforts to kill Drew that he claimed in the period between the raid and 1839.39 And indeed, while it seems difficult to conflate Usher’s killing with an assassination attempt on Drew, there is evidence that embittered rebels and their American supporters had designs on Drew.40 Assassination attempts were not the only hardships that Drew attributed to his involvement in destroying the Caroline. He complained that derogatory characterizations of his role in that raid by disgruntled Americans coloured early impressions even in Great Britain — reports out of New York reached London newspapers 257

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first. He wrote decades later that “[w]hen the account first reached England, it was reported that a vessel had been sent over the Falls of Niagara, burning, and with 160 human beings on board. This remaining uncontradicted, was believed for some time, and I, of course, looked upon as a monster in human shape.”41 Commander Drew’s reputation was, however, intact in Upper Canada. The lieutenant-governor and both houses of the Upper Canada legislature extended to him their thanks (and rewarded him with a sword valued at 75 guineas).42 Drew was soon a commodore of the new provincial marine, in command of an armed steamer — Colborne — on Lake Erie from October 1838 to August 1839, a period of continued rebel activity along the frontier.43 As naval advisor, he also had the ear and admiration of the new lieutenant-governor, Sir George Arthur.44 But he saw no further action in the waning rebellion, and his time in Upper Canada ended in controversy: in 1839, an unpopular officer sent from London to command the new provincial marine clashed with Drew, and ignominiously relieved the latter of command on charges of being absent without leave.45 Drew requested a court martial, and (vocally supported by luminaries such as Francis Bond Head) was acquitted on the chief charges in 1840 (he was in fact sick and then on other duty during his periods of absence).46 Drew later complained that he received no financial reward for his service in Canada, other than pay for his months in the militia. Moreover, his long-sought promotion to captain in the Royal Navy was delayed — he reasonably expected another “hero” promotion after the Caroline raid, but the British government was initially wary of inciting further American consternation by promoting the leader of that provocation.47 Even after the Foreign Office relaxed its concerns about promotion, the Admiralty resisted — possibly because of Drew’s lingering legal troubles with the well-connected Admiral Vansittart in relation to the failed Woodstock business partnership.48 Meanwhile, Drew’s efforts to return to his cherished estate Rathbourne, at Woodstock in today’s Ontario, were quickly abandoned. After an ostensible third assassination attempt — this time occurring on Drew’s farm itself — and “having a wife and a large family of 258

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young children,” the naval officer “at once made up my mind to leave the country.”49 Drew sold his Woodstock estate, reportedly at a loss into a market depressed by the rebellion.50 While his farm is now long gone, replaced by a leafy Woodstock suburb, Drew’s house still stands and its exterior appears to have changed little from the nineteenth century. Drew sold Rathbourne to Nelson Bendyshe, reputedly a near relation of Lord Horatio Nelson. Just after Canadian Confederation, it was again sold, this time to a former mayor of Woodstock, who sold off parcels of Drew’s original estate.51 After a period of neglect, Rathbourne was repaired in the mid-twentieth century and is considered one of the finest Regency cottages in the province.52 The home’s origins are marked on its front lawn with a plaque memorializing Drew, installed in 1959.53 But Drew himself was done with Canada — he returned to England in 1842 with his wife, Mary, and four children (with three more born later in England). Drew himself regretted leaving the province, a place he described as containing “all my wealth and all my hopes.”54 But local lore in Woodstock also records that he and his family were embittered by their treatment in Canada and took everything with them, having no intention of ever returning.55 Drew remained enterprising. Back in England, he was credited with inventing design modifications protecting steamships from breaking under the weight of their engines. In doing so, he sought “no patent, and desires no reward beyond the credit of being instrumental in preserving not only valuable property, but human life from destruction.”56 He also returned to active service in October 1842, taking command in October of the corvette Wasp in the West Indies, where he is immortalized in “Drew’s Rock,” a dangerous shoal he charted near Trinidad and Tobago. Although Drew finally received the long-sought promotion to captain in the Royal Navy in June 1843, the Wasp was his last command. Drew continued to perform various (unglamorous) naval functions — including as the Admiralty Agent at the Cape of Good Hope.57 He was promoted to rear admiral in 1863, vice admiral in 1869, and admiral in July 1875. He remained, however, 259

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reduced to half-pay status,58 and obviously begrudged his financial state. Drew wrote in 1864: “I returned to England [from Canada] in the spring of the year 1842, and have been a poor man ever since.”59 In penning that 1864 account of the Caroline incident, Drew quite openly acknowledged his interest in preserving his place in history and in lobbying for indemnification from the British government for the alleged losses on the sale of his farm in Upper Canada.60 This redress was, as best as I can establish, discussed by the Admiralty, but never rewarded. Drew died on 19 December 1878, aged eightysix,61 the last of the main Caroline protagonists. He is buried at Camberwell Old Cemetery near Peckham, now part of greater London. Unlike some of the grander memorials in this old, dilapidated Victorian graveyard, his burial place was marked by a simple cross.62 When we visited in July 2017, we could find no indication that this marker still exists. Likewise, the more material things and places made famous by the Caroline matter have also been largely forgotten. Virtually nothing of the steamboat itself survives. The engine said to have been visible for years protruding from the Niagara River above the Falls rusted away long ago. After the raid, the boat’s bowsprit — a spar extending from the boat’s front — was discovered below the Falls and repurposed as a hitching-post at a tavern near Lewiston, New York. It too is long since gone. But the boat’s figurehead had a less ignominious fate. The 19-inch, tiara-clad head and bust — presumably of Queen Caroline with “coiffure . . . still as nicely arranged, her smile as gracious as when she awoke under the graver’s chisel” — was recovered below the Falls near Lewiston. It is now found in the Buffalo History Museum, after an 1867 donation.63 On the Niagara River itself, there are few physical reminders of 1837. There is no indication that Schlosser, New York — the site of the raid that sent the boat to its fate — ever existed. And Navy Island, occupied 180 years ago by Mackenzie’s insurgency, has returned to obscurity. A few families attempted to farm the island in the 1850s, and the island reappeared in the press when two New York gentlemen fought a dual on the island in 1855. Soon after, the island hosted 260

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a hotel and resort in the last quarter of the nineteenth century — one that was said to include a bicycle path around the island, horse races, boxing bouts, and baseball games. The Queen’s Hotel was rumoured to have the longest bar in the world, and local lore said it was the place from which the plot to assassinate President William McKinley was hatched.64 But the building burned in 1910, and was the last real structure on the island. The island then sunk into obscurity. During Prohibition in the United States, the Niagara River was a notorious smuggling route, and the Canadian government placed a small militia contingent on the island to deter bootleggers (and illegal duck hunters), but left after a few months.65 Since the early twentieth century, the Niagara Parks Commission has managed the land under lease from the Canadian government as a national historic site and wildlife preserve, a status unaffected by a brief, unsuccessful aboriginal land claim brought by several southern Ontario First Nations.66 Today, the island is uninhabited, densely forested, and officially closed to the public. As recently as the last decade, it was visited by boat by fishers, birding enthusiasts, and the occasional littering, summer party crowd.67 But Parks Canada worries about illegal artifact collecting on an island. The island’s archaeological potential has not been properly surveyed,68 and may be considerable. In addition to a substantial record of Indigenous artifacts, remnants of the British shipbuilding operation and more recent late nineteenth-century objects,69 articles from Navy Island’s brief revolutionary past are sometimes still found, including ball ammunition, cannon shot, and shell fragments. Even as recently as the turn of this century, some of the insurgents’ entrenchments and suspected cratering from the British bombardment of the island had reportedly survived erosion and were still visible to a skilled eye.70 There is now a certain urgency in documenting these cultural remains: since the 1960s, the island has suffered serious shoreline erosion, and anecdotally, several metres of shoreline fall into the Niagara River every year.71 On the Canadian mainland, the island’s historical significance is noted by a simple marker, located on the Niagara Parkway across from the southern tip of the island. A little further north on the 261

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Parkway near the Chippawa battlefield, a plaque memorializes the sinking of the Caroline. It seems unlikely many people linger over these memorials. It is, however, a fitting footnote to the Caroline affair that a joint Canadian-American bid supported by national and local politicians and business people proposed the siting of the new United Nations headquarters on the island in 1945.72 An artist’s rendering of the plan shows a long ceremonial concourse framed by futuristic buildings and bridges linking the island to both the Canadian mainland and Grand Island, New York.73 “Canada and the United States,” proclaimed the proposal, “display proudly to the world an unfortified frontier 3,500 miles in length,” showing that “it is possible for nations to practice tolerance and live together in peace with one another as good neighbors.” At Navy Island, those charged with implementing the United Nations would be inspired “to execute their high duties in a locality steeped in traditions of peace and good neighborliness, among peoples of varied ancestry who have forged indissoluble bonds of international good will and co-operation, and who have made peace work.”74 In the end, the plan could not compete with John D Rockefeller Jr’s donation of land in New York City, the current site of the United Nations headquarters. It is there that the world’s nations now debate principles of international law, including the one originating in a nighttime raid that took place 180 years ago on the Niagara River.

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Appendix: Chain of Citations and Misunderstandings about the Caroline 's Core Facts Nuremberg Tribunal (IMT) “It must be remembered that preventive action in foreign territory is justified only in case of ‘an instant and overwhelming necessity for self­-defense, leaving no choice of means, and no moment of deliberation.’”

Moore’s Digest of International Law 1906, volume 2 at 411–12: Noting the presence of armed insurgent “encamped” on Navy Island, Upper Canada, but not mentioning the shelling. Nor is there mention of the inability of US authorities to suppress the insurgency, or the origin of the arms from US militia stores.

Lawrence, Commentaire Droit International 1873, volume 3 at 430: Correctly noting that the Caroline was being used to ferry weapons for the insurgents, but not noting that there had already been an occupation of part of Canada and shelling of another part of it. No mention of the inability of US authorities to suppress the insurgency.

Original Sources At least some, though not all, of the diplomatic correspondence in the matter.

Hall, International Law 1890, 4th ed at 283: Incorrectly describing Navy Island as in US territory, noting shots had been fired into Canada, but asserting that (mere) “preparations were made to cross in British territory,” using the Caroline. No mention of the inability of US authorities to suppress the insurgency.

Phillimore, Commentaries Int’I Law 1879, 3d ed volume 1 at 315: Incorrectly describing Navy Island as in US territory, noting shots had been fired into Canada and that “preparations were made to cross in British territory,” using the Caroline. No mention of the inability of US authorities to suppress the insurgency.

Kent’s Commentary on International Law 1878, 2d ed at 146–48: Correctly noting that Caroline was being used to ferry insurgents to Canada, although not noting that there had already been an occupation of part of Canada and shelling of another part of it. No mention of the inability of US authorities to suppress the insurgency.

263

Notes

epigraph 1

Rear Admiral Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode & Co, 1864).

Acknowledgements 1

The Queen’s Advocate, Attorney and Solicitor-General to Viscount Palmerston (21 February 1838), Doc 29, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 27 & 28. Also reproduced in Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) at 225.

Preface 1

William Faulkner, Requiem for a Nun (New York: Vintage International, 2011) at 69.

Chapter 1: Introduction 1

Counter-terrorism question — 9656 (8 September 2015), online: www. parliament.uk/written-questions-answers-statements/written-question/ commons/2015-09-08/9656. 265

Notes for Pages 1–3 2 ISIS is the acronym for “Islamic State in Iraq and Syria” while ISIL stands for “Islamic State of Iraq and the Levant.” 3 UK Intelligence and Security Committee (ISC), UK Lethal Drone Strikes in Syria Report (April 2017) at 6–10, online: https://b1cba9b3-a-5e6631fd-s-sites.googlegroups.com/​a/independent.gov.uk/isc/files/20170426_UK_Lethal_Drone_ Strikes_in_Syria_Report.pdf. 4 For a discussion of the relevant facts, see Letter from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations (7 September 2015), addressed to the President of the Security Council, S/2015/688. See also UK Parliament, Joint Committee on Human Rights, The Government’s Policy on the Use of Drones for Targeted Killing, 2d Report of Session 2015–16, HL Paper 141; HC 574 (10 May 2016), online: www. publications.parliament.uk/pa/jt201516/jtselect/jtrights/574/574.pdf. Soon after, two other Britons were killed in US airstrikes. In one of these instances, the prime minister announced “the UK intelligence and security Agencies had been working with US colleagues to track down” the target. UK Intelligence and Security Committee of Parliament, Annual Report 2015–2016 at 7, online: http:// isc.independent.gov.uk/files/2015-2016_ISC_AR.pdf. 5 UK, HC, Parliamentary Debates, vol 599, col 25 (7 September 2015). 6 Letter (7 September 2015), above note 4. 7 Joint Committee on Human Rights, above note 4; ISC, above note 3 at 6–10. 8 See Joint Committee on Human Rights, above note 4 at 45 and 97. See also Counter-terrorism question, above note 1. 9 For the “grammar” analogy, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Argument (Cambridge: Cambridge University Press, 2005) at 563 et seq. For similar points in relation to war, see Scott Andrew Keefer, “‘An Obstacle, Though Not a Barrier’: The Role of International Law in Security Planning during the Pax Britannica” (2013) 35:5 International History Review 1031 at 1032. 10 See Max Roser, “War and Peace” (2016), online: Our World in Data https:// ourworldindata.org/war-and-peace. See also Steven Pinker, The Better Angels of Our Nature (New York: Penguin Books, 2012). There is occasional controversy over the data and how they should be interpreted. See John Gray, “Steven Pinker Is Wrong about Violence and War” The Guardian (13 March 2015), online: www.theguardian.com/books/2015/mar/13/john-gray-steven-pinkerwrong-violence-war-declining; Kristian Skrede Gleditsch & Steve Pickering, “Wars Are Becoming Less Frequent: A Response to Harrison and Wolf” (2014) 67:1 Economic History Review 214. See also Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Toronto: Simon & Schuster, 2017) at 334. 11 See, for example, Eric Posner, “Have the Use of Force Rules Reduced the Frequency of War?” (5 March 2014), online: Eric Posner http://ericposner.com/ have-the-use-of-force-rules-reduced-the-frequency-of-war. Posner (along with others) is generally skeptical of the role international law plays in shaping

266

Notes for Pages 3–10

12 13

14

15 16

state behaviour. See Jack Goldsmith & Eric Posner, The Limits of International Law (Oxford: Oxford University Press, 2009). See Eliot Cohen, The Big Stick: The Limits of Soft Power and the Necessity of Military Force (New York: Basic Books, 2016). There is a considerable literature on this issue. For an overview on the “politics of justification” and studies detailing the impact of international law and political decision-making in the context of use of force, see Ryan Goodman, “Humanitarian Intervention and Pretexts for War” (2006) 100 American Journal of International Law 107 at 114 and 123; Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford: Oxford University Press, 2014). For a more detailed theory of international law and international decision-​making, see Jutta Brunnée & Stephen Toope, Legitimacy and Legality in International Law (Cambridge: Cambridge University Press, 2010). See also Harold Koh, “Why Do Nations Obey International Law?” (1997) 106 Yale Law Journal 2599; Oona Hathaway & Scott Shapiro, “Outcasting: Enforcement in Domestic and International Law” (2011) 121 Yale Law Journal 252. On this last point, the International Criminal Court will soon have jurisdiction over the crime of “aggression,” at least in relation to those states who participate fully in the regime. More generally, see Peevers, above note 13, for a discussion of the political calculus associated with international law and use of force. Keefer, above note 9 at 1037–38. The Earl of Clarendon’s statement was made about the effect of including a mediation provision in an 1856 peace treaty. See, most recently, Hathaway & Shapiro, above note 10 at xxi.

Part I: The Destruction of the Caroline 1 Poem which appeared originally in Coburg Star (7 February 1838), reproduced in Robina Lizars & Kathleen MacFarlane Lizars, Humours of ’37: Grave, Gay and Grim: Rebellion Times in the Canadas (Toronto: William Briggs, 1897) at 9.

Chapter 2: The Insurgency 1 Robina Lizars & Kathleen MacFarlane Lizars, Humours of ’37: Grave, Gay and Grim: Rebellion Times in the Canadas (Toronto: William Briggs, 1897) at 203. 2 Alasdair Roberts, America’s First Great Depression (Ithaca: Cornell University Press, 2012) at 86. 3 Herbert Bell, Lord Palmerston (London: Longman, Green, 1966) vol 1 at 244. 4 Except as otherwise noted, the summary of the situation in the Canadas and the 1837 rebellions is drawn from Edwin Guillet, The Lives and Times of the Patriots (Toronto: Ontario Publishing, 1963); Frederick H Armstrong & Ronald J Stagg, “Mackenzie, William Lyon” in Dictionary of Canadian Biography, Vol IX (1861–1870), online: www.biographi.ca/en/bio/mackenzie_william_lyon_9E.

267

Notes for Pages 10–12

5 6

7 8 9 10

11 12 13 14 15 16 17

18

19

html; and Sydney Jackman, Galloping Head: The Life of the Right Honourable Sir Francis Bond Head (London: Phoenix House, 1958). See William Kilbourn, The Firebrand: William Lyon Mackenzie and the Rebellion in Upper Canada (Toronto: Clarke, Irwin, 1956) at 29. For the political divisions in Upper Canada, see discussion in David Mills, The Idea of Loyalty in Upper Canada, 1784–1850 (Kingston: McGill-Queen’s University Press, 1988). Kilbourn, above note 5 at 29–39. Armstrong & Stagg, above note 4. Ged Martin, “Head, Sir Francis Bond” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/12807. Sydney Jackman, Galloping Head: The Life of the Right Honourable Sir Francis Bond Head (London: Phoenix House, 1958) at 70. In some “fallacious” tellings, Head’s appointment was a misunderstanding, and the government confused Head with one or another of his brothers. (Neither of these individuals, however, seem more likely candidates for the post.) It is also possible that Head benefited from his family’s distant relationship to King William IV. The most plausible explanation for his appointment was that the British government reached a compromise between the traditional military governor and the civilian official sought by Canadian reformers. (It is also the case that the government had slashed the post’s salary, deterring more experienced candidates.) (Jackman, ibid.) See also Kilbourn, above note 5 at 142–43. Jackman, above note 10 at 70. Francis Bond Head, A Narrative (London: John Murray, 1839) at 35. Ibid at 448. Jackman, above note 10 at 73–90. Kilbourn, above note 5 at 149 et seq. Jackman, above note 10 at 103. Ibid at 104–5. “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841) in Gould’s Stenographic Reporter, vol 2 (Washington, DC: 1841) 10 at 19. Francis Bond Head to Henry Stephen Fox (8 January 1838) in Correspondence between Viscount Palmerston & Mr. Stevenson relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River on the Night of the 29th of December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada (1841), UKNA, FO 881/12 at 10, online: https://archive.org/stream/ cihm_46050?ref=ol#page/n5/mode/2up [Palmerston Correspondence]. Jackman, above note 10 at 106. Head subsequently burned the tavern to the ground “as an act of stern vengeance.” Francis Bond Head, The Emigrant (New York: Harper & Brothers, 1847) at 115. Charles Lindsey, The Life and Times of W.M. Lyon Mackenzie, vol 2 (Toronto: PR Randall, 1862) at 124; Albert Corey, The Crisis of 1830–1842 in Canadian-​ American Relations (New Haven: Yale University Press, 1941) at 30 et seq. According to Lindsey, this first meeting was on or about 11 December, although the sources are inconsistent. Sir George Arthur to Lord Sydenham 268

Notes for Pages 12–14

20

21 22

23

24

25 26

27

28

29 30

(1 February 1841), Doc 72, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 122 (listing “[a]bout the 10th of December”) [Bourne]. For a discussion of the financial crash in May 1837 and the economic troubles also besetting Canada, see DG Creighton, “The Economic Background of the Rebellions of 1837” (1937) 3:3 Canadian Journal of Economics and Political Science 322. For a general history of the crash, see Roberts, above note 2. Ibid at 22 et seq and 123. Robert Coakley, The Role of Federal Military Forces in Domestic Disorders 1789– 1878 (Washington: Center of Military History, 2011) at 110. Guillet, above note 4 at 178. Francis Bond Head, Private Letter (26 December 1837) in Correspondence Relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 42–43 [Caroline Correspondence]. Francis Bond Head to Governor William Marcy (13 December 1837), Doc 2, in Bourne, above note 19 at 1. A few days later, he would complain to the British ambassador in Washington about the injustice of American citizens supporting an insurrection that had been so quickly suppressed in Canada, increasing the risk of a protracted conflict. He appealed to the ambassador to prevail on the US government to suppress the budding cross-border insurgency through “immediate exertion of military force.” Francis Bond Head to Henry Stephen Fox (23 December 1837), Doc 4, in Bourne, ibid at 2. “President’s Proclamation to Enforce Neutrality on the Frontier” (5 January 1838) in Caroline Correspondence, above note 23 at 19–20. “Special Message of the President Recommending the Amendment of the Law for the Maintenance of Neutrality” (5 January 1838), ibid at 21. See Corey, above note 19 at 50 et seq. John Forsyth to Governor William Marcy (7 December 1837). Letters were also sent to the governors of Vermont and Michigan. John Forsyth to the New York and Vermont district attorneys (7 December 1837). All of these letters are in Caroline Correspondence, above note 23 at 16–17. John Forsyth to the New York district attorney (7 December 1837), Caroline Correspondence, above note 23 at 17. Later, this same New York district attorney would admonish the American military commander of Mackenzie’s insurgency (by then occupying Navy Island, a Canadian territory in the Niagara River, after invading from New York) not to send his forces back the United States because it would be “an invasion of American soil.” This message may not have been entirely in the spirit of what was intended by the concept of “neutrality.” [WH Rogers to Rensselaer Van Rensselaer (29 December 1837), Doc 8, in Bourne, above note 19 at 5. See also Coakley, above note 22 at 111. John Forsyth to the New York district attorney (21 December 1837) in Caroline Correspondence, above note 23 at 18. Coakley, above note 22 at 112. 269

Notes for Pages 14–16 31 Henry Stephen Fox to Francis Bond Head (4 January 1838), Doc 18, in Bourne, above note 19 at 11. 32 New York district marshal to the president of the United States (28 December 1837) in Caroline Correspondence, above note 23 at 22. 33 Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72, in Bourne, above note 19 at 122. 34 Deposition of Samuel Wood (no date), Palmerston Correspondence, above note 18 at 79. 35 Lindsey, above note 19 at 126 et seq. 36 Henry Stephen Fox to Viscount Palmerston (13 January 1838) in Caroline Correspondence, above note 23 at 5. 37 Lindsey, above note 19 at 126 et seq; Lillian F Gates, “Sutherland, Thomas Jefferson” in Dictionary of Canadian Biography, vol 8 (1851–1860), online: www. biographi.ca/en/bio/sutherland_thomas_jefferson_8E.html.

Chapter 3: The Invasion 1 Reproduced online: www.virtualreferencelibrary.ca/detail.jsp?Entt=RDMDC-​ OHQ-​EPHE-S-R-15&R=DC-OHQ-EPHE-S-R-15. 2 Brian Ross, Cesare D’Annibale, & Kristen Spence, “National Parks and Native Sites Archaeology, Parks Canada, Ontario Service Centre: 1997” (1998) 9 Annual Archaeological Report, Ontario 151. 3 Roland Nafus, Navy Island: Historic Treasure of the Niagara (Youngstown: Old Fort Niagara Publications, 1998) at 27 and 33–35. 4 Ibid at 39–40. 5 Ibid at 51. 6 Six Nations Legacy Consortium, 1764 Treaty of Fort Niagara Wampum Belts (15 July 2014) at 1, online: www.chiefs-of-ontario.org/sites/default/files/files/ Treaty_of_Fort_Niagara_Wampum_Belts.pdf. 7 Laurence Hauptman, Conspiracy of Interests: Iroquois Dispossession and the Rise of New York State (Syracuse, NY: University of Syracuse Press, 1999) at 130. 8 Six Nations Legacy Consortium, above note 6. 9 Robert Surtees, “Land Cessions, 1763–1830” in Edward Rogers & Donald Smith, eds, Aboriginal Ontario: Historical Perspectives on the First Nations (Toronto: Dundurn, 1994) 91 at 96–97. 10 The broader 1764 Treaty of Niagara has considerable political and legal significance in the history of Indigenous-European relations. See John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch, ed, Aboriginal and Treaty Rights in Canada (Vancouver: UBC Press, 1997) 155. The First Nations in attendance were as follows: Western Confederacy — Algonquins, Chippewas, Crees, Foxes, Hurons, Menominees, Nipissings, Odawas, Sacs, Toughkamiwons, 270

Notes for Pages 16–17 and Winnebagoes; Iroquois Confederacy — Cannesandagas, Caughnawagas, Cayugas, Conoys, Mohawks, Mohicans, Nanticokes, Oniedas, Onondagas, and Senecas. . . . It is also believed that representatives of the Lakota, MicMac and Pawnee Confederacies were in attendance. [Ibid at 262.] 11 In fact, the Mississauga claimed the west bank of the river. Surtees, above note 9 at 97. 12 See Seneca Nation of Indians v New York, 206 F Supp 2d 448 at 509 (WDNY 2002). 13 Richard Merritt, On Common Ground: The Ongoing Story of the Commons in Niagara-​on-the-Lake (Toronto: Dundurn, 2012) at 22–23; Surtees, above note 9 at 97–98. 14 In the late twentieth century, the Seneca would contest the actual implication of this 1764 treaty for the Seneca’s interests in Grand Island and other Niagara River islands on the US side of the border. The Seneca argued in US court in the 1990s that the 1764 treaty did not extinguish their title to the islands. The US District Court, and ultimately Court of Appeals for the 2d Circuit, disagreed. See Seneca Nation of Indians v New York, 382 F3d 245 (2d Cir 2004). A similar land claim was launched in the early 1990s by the Mississauga Band in Ontario. The Mississauga Tribal Claims Council alleged that Navy Island was never ceded in the Niagara treaty of 1781, relating to the west side of the Niagara River. That treaty is online: www.aadnc-aandc.gc.ca/eng/1370372152 585/1370372222012. The government concluded “no lawful obligation found” in 1995. Indian and Northern Affairs Canada, Specific Claims Branch, Reporting Centre on Specific Claims, online: http://services.aadnc-aandc.gc.ca/SCBRI_E/Main/ ReportingCentre/External/externalreporting.aspx. 15 Ross, D’Annibale, & Spence, above note 2 at 126. 16 Nafus, above note 3 at 61. 17 Seneca Nation of Indians v New York, above note 12. 18 Deposition of Samuel Wood (no date) in Correspondence between Viscount Palmerston & Mr. Stevenson relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River on the Night of the 29th of December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada (1841), UKNA, FO 881/12 at 79, online: https://archive.org/details/cihm_46050 [Palmerston Correspondence]. Some reports date the occupation from 16 December and others from 14 December. NS Benton, US Attorney, to John Forsyth (6 February 1838) (ibid at 31). And near contemporary sources say 13 December. Charles Lindsey, The Life and Times of W.M. Lyon Mackenzie, Vol II (Toronto: PR Randall, 1862) at 130. The early date may be the correct one, since the Mackenzie proclamation discussed below is dated 13 December, on Navy Island. 19 Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick: University Publications of America, 1986) at 123. 271

Notes for Pages 17–20 20 Deposition of John Radenhurst (24 November, no year) in Palmerston Correspondence, above note 18 at 68. 21 Deposition of Lieutenant John Elmsley (27 November 1838), ibid at 69. The widow may, in fact, have had two daughters instead. Wood, above note 18 at 79. This widow was likely Mrs Chambers, whose husband had hunted and trapped on the island before being swept (drunk) over the Falls. Samuel De Veaux, The Falls of Niagara (Buffalo: William B. Hayden, 1839) at 75. 22 Wood, above note 18 at 79. 23 NS Benton to John Forsyth, above note 18 at 31. 24 Nafus, above note 3 at 67. 25 Radenhurst, above note 20 at 68. In modern times, the current in the Chippawa Channel dividing Grand Island and the Canadian side is 0.6–0.9 metres per second, or 2.16–3.24 kilometres per hour. The current in 1837 may have been stronger. Drew describes local charts showing a current of seven miles per hour (eleven kilometres per hour). Rear-Admiral Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode, 1864) at 7. Even near the far bank, the water moved briskly. Lieutenant Elmsley estimated the flow near the bank on the US side of the river during the night of the Caroline raid at three miles per hour (4.6 kilometres per hour). Deposition of Lieutenant John Elmsley (27 November 1838) in Palmerston Correspondence, above note 18 at 69. 26 Franklin B Hough, Results of a Series of Meteorological Observations: Sundry Academies in the State of New York (Albany: Weed, Parsons, 1855) at 252 (measurements taken at Lewiston High School Academy, Lewiston, Niagara County, on the eastern bank of the Niagara River near Lake Ontario). 27 Francis Bond Head to Henry Stephen Fox (8 January 1838) in Palmerston Correspondence, above note 18 at 10. 28 Lindsey, above note 18 at 128. 29 Ibid at 131 and 363. The proclamation is reproduced online: www. virtualreferencelibrary.ca/detail.jsp?Entt=RDMDC-OHQ-EPHE-S-R-15&R= DC-OHQ-EPHE-S-R-15. 30 This second proclamation is reproduced in Lindsey, above note 18 at 131. 31 Dated 21 December 1837, reproduced in Nafus, above note 3 at 69. 32 Lindsey, above note 18 at 138–39. 33 Head to Fox, above note 27 at 11; Deposition of Samuel Wood, above note 18 at 80–81. The provenance of the artillery was a contested issue in the subsequent diplomatic dispute. The British produced affiants claiming that the cannons were the property of the United States or of a corps of militia artillery. See, for example, Wood (ibid at 79); deposition of Sylvanus Fearnes Wrigley (30 December 1837) in Palmerston Correspondence, above note 18 at 19; and the deposition of George Nolop (30 December 1837), ibid at 18. The credibility of the latter affiant was directly challenged in Deposition of Henry Emmons (1 January 1838), ibid at 21, and the deposition of Amos Sawyer et al (9 January 1838), ibid at 23 (asserting that Nolop was not in, fact, a witness to the things he claimed to see because he was not present at Fort Schlosser 272

Notes for Pages 20–24

34 35 36 37 38 39 40

41 42

as he claimed). The American authorities insisted that the cannons were not United States property. (Benton to Forsyth, above note 18 at 31.) Whether this conclusion was fully responsive to claims that the cannons were from a New York State armory is unclear. At any rate, it seems certain that the rebels on Navy Island were equipped with “ordnance and arms” owned by American governments, said by the New York State commissary-general to have been “clandestinely obtained from the possession of the people of this State.” Henry Arcularius to Allan Napier MacNab (3 January 1838), Doc 12, in Bourne, above note 19 at 7. See also Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Sir George Arthur, The Arthur Papers, vol 1 (Toronto: University of Toronto Press, 1957) at 456. Lindsey, above note 18 at 141. Edwin Guillet, The Lives and Times of the Patriots (Toronto: Ontario Publishing, 1963) at 77–78. Drew, above note 25 at 6. Head to Fox, above note 27 at 11. Wood, above note 18 at 80. Head to Fox, above note 27 at 11. “A Survey of the River Niagara” (1817), online: https://brocku.ca/maplibrary/ HistoricalMaps/JPEG/NMC-21729.jpg. Witnesses describe the insurgents as equipped with six-pounder cannons. Wood, above note 18 at 79. Near contemporaneous six-pounder field pieces built in 1841 had an effective range of up to 1,500 yards (1371 metres). Artillery Society, “The Six Pounder Cannon,” online: www.artillerysociety.co.uk/ sixpounder.html. Deposition of Lieutenant McCormick (no date) in Palmerston Correspondence, above note 18 at 72; Wood, ibid at 80. Head to Fox, ibid at 11. Palmerston Correspondence, ibid. Histories of the period do suggest one man on the Canadian mainland was killed by small-arms fire. Lindsey, above note 18 at 141. If so, this event appears not to have been noted by the Upper Canada sources, and given the distance from island to shore, seems unlikely.

Chapter 4: The Canadian Militia 1 Original from the Montreal Herald, reproduced in Francis Roswell, “The Cutting Out of the Caroline” (1838), extract online: https://archive.org/details/ cuttingoutofcaro00capt. 2 See “General Orders,” reproduced in UKNA, FO 881/12, Correspondence between Viscount Palmerston & Mr. Stevenson, Relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River, on the Night of the 29th December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada at 84 [Palmerston Correspondence]. 3 Peter Baskerville, “MacNab, Sir Allan Napier” in Dictionary of Canadian Biography, vol 9 (18611870), online: www.biographi.ca/en/bio/macnab_allan_ napier_9E.html. See also Francis Bond Head, The Emigrant (New York: Harper & Brothers, 1847) at 110. 273

Notes for Pages 24–26 4 John Ireland, “Andrew Drew: The Man Who Burned the Caroline” (1967) 59 Ontario History 137 at 144 [Ireland, “Burned”]. 5 Francis Bond Head to Henry Stephen Fox (8 January 1838) in Palmerston Cor­ respondence, above note 2 at 11. See also Head, The Emigrant, above note 3 at 147. 6 Francis Bond Head, A Narrative (London: Ackermann, 1838) at 378. 7 Wendy Cameron & Mary McDougall Maude, Assisting Emigration to Upper Canada: The Petworth Project 1832–1837 (Montreal: McGill-Queen’s University Press, 2000) at 161; George Emery, Elections in Oxford County, 1837–1875 (Toronto: University of Toronto Press, 2012); John Ireland, “Andrew Drew and the Founding of Woodstock” (1968) 60 Ontario History 229 at 231–32. 8 Henri Pilon, “Elmsley, John” in Dictionary of Canadian Bibliography, vol 9 (1861–1870), online: www.biographi.ca/en/bio/elmsley_john_1801_63_9E. html. The official Royal Navy record of Elmsley’s service includes only service from March 1822 to August 1824. UKNA, ADM 196/4/150. 9 Deposition of Lieutenant John Elmsley (27 November 1838) in Palmerston Correspondence, above note 2 at 69. 10 Drew’s biography is constructed from Ireland, above note 4, and William R O’Byrne, A Naval Biographical Dictionary (London: John Murray, 1849) at 306, unless otherwise noted. 11 John Ireland, Drew’s most comprehensive biographer, notes that nothing is known about the naval officer’s origins, a deliberate choice by Drew in filling out the biographical survey included in O’Byrne, above note 10. He speculates that this signifies that Drew was the son of a successful businessman, a socially inferior class at the time. Ireland, “Burned,” above note 4 at 137–38. However, a local historian in Woodstock, Ontario, Irene Crawford, seems to have had access to a more comprehensive biography, possibly because of communication with Drew’s descendants. The Woodstock library and museum possess two essays by Crawford, one titled “Captain Andrew Drew” in the newsletter of the Oxford Historical Society, Oxford Through Time (February 1982), and the other, a longer monograph with the same title, dated 1981. The local history file I reviewed in the Woodstock museum also includes a family tree marked “Captain Andrew Drew — Family History,” authored by Drew’s descendant, Mary Robinson, in 2003, and on file with the author. (Robinson is marked as having immigrated to Canada in 1997.) Andrew Drew is shown as born of John Drew and Mary Cole Akid in London on 11 November 1792. The document also includes more narrative detail about Drew’s forebears. 12 Andrew Drew, Memoir of the Services of the Late Captain Sir John Phillimore (June 1850) at 289, [Winchester, UK], Hampshire Archives and Local Studies (Doc 115M88/F13/1). 13 For an account of the Bellette’s action, see ibid at 282 et seq. John Marshall, Royal Navy Biography (London: Longman, Rees, Orme, Brown, and Green, 1827) at 244. 14 Drew, above note 12 at 277. 274

Notes for Pages 26–28 15 16 17 18 19

20

21

22 23

24 25 26

27

28

29 30 31

Ibid. See also Marshall, above note 13 at 244; O’Byrne, above note 10 at 306. Drew, above note 12 at 278; O’Byrne, above note 10 at 306. Marshall, above note 13 at 245–49. Drew, above note 12 at 284. A “hero promotion” generally followed the taking of an enemy ship of equal or greater class or distinguished service. Charles Consolvo, “The Prospects and Promotion of British Naval Officers 1793–1815” (2005) 91:2 The Mariner’s Mirror 137 at 149. Without this hero promotion, Drew’s lack of social station and his limited financial means would probably have stalled his career. Ireland, “Burned,” above note 4 at 140. “Sir John Phillimore, R.N.C.B., and Mr. James, The Naval Historian” [London] Morning Chronicle (5 April 1823) at 3. Ireland, “Burned,” above note 4 at 138, describes Phillimore as having “an ungovernable temper which led him into noisy and public quarrels with everyone from flag officers to the Admiralty itself.” Drew, above note 12 at 286. Drew declines to name himself as the lieutenant who accompanied Phillimore, and indeed exonerates his patron’s conduct. But the newspapers were franker in identifying the culprits: “The King against Sir John Phillimore and Lieut. Andrew Drew” [London] Morning Chronicle (28 August 1824) at 4. Marshall, above note 13 at 249. Ibid at 249–51. See also Drew, above note 12 at 287; John Phillimore to Admiralty (29 September 1824), UKNA, ADM 1/2346. The estimates of the number of marines and seamen under Drew’s command vary. I have used Phillimore’s original number. Phillimore to Admiralty, ibid. Drew, above note 12 at 288. Ireland, “Burned,” above note 4 at 140. Crawford reports that “the British had 860 commanders; in peacetime they needed only 64.” Crawford (1981), above note 11 at 2. Rear-Admiral Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode & Co, 1864) at 5 [Drew, A Narrative]. John Ireland, “Andrew Drew and the Founding of Woodstock” (1968) 60 Ontario History 229 at 233 et seq [Ireland, “Founding”]; Mary Ellen Perkins, A Guide to Provincial Plaques in Ontario (Toronto: Dundurn, 1989) at 205; ML Magill, “Drew, Andrew” in Dictionary of Canadian Biography, vol 10 (1871–1880), online: www.biographi.ca/en/bio/drew_andrew_10E.html. See also the plaque outside the church, online: www.readtheplaque.com/plaque/ st-paul-s-church-1834. Ireland, “Founding,” above note 28 at 244. Ibid at 241. Magill, above note 28; City of Woodstock, “Local History,” online: www.cityofwoodstock.ca/en/live-and-play/local-history.aspx. Print 2017.16.1, Woodstock, Woodstock Museum, online: woodstockmuseum. pastperfectonline.com/search; Janet Wright, Architecture of the Picturesque 275

Notes for Pages 28–31

32

33 34 35 36 37 38 39 40

41 42

in Canada (Ottawa: Parks Canada, 1984) at 57, online: www.historicplaces.ca/ media/24635/picturesquecanada.pdf. Mary Byers & Margaret McBurney, “Woodstock Regency House Built by Royal Navy Captain” Globe and Mail (10 February 1983) at 21. Regency cottages were generally square, one-and-a-half storeys high, with a gently sloping roof. The verandah became popular under the influence of British India. But in Canada, it could prove a “mixed blessing” — providing summer shade, but making the interior dark in winter. Drew, A Narrative, above note 27 at 5. This visitor was likely Lord Algernon Percy. Robina Lizars & Kathleen MacFarlane Lizars, Humours of ’37: Grave, Gay and Grim: Rebellion Times in the Canadas (Toronto: William Briggs, 1897) at 218. Drew, A Narrative, above note 27 at 5. See the affidavits included in Major R Cuthbertson Muir, The Early Political and Military History of Burford (Quebec: Impimerie Commerciale, 1913) at 140–41. Perkins, above note 28 at 205. Crawford (1981), above note 11 at 5. Drew, A Narrative, above note 27 at 5. Ibid. Allan Napier MacNab to Andrew Drew (20 December 1837), Doc 3, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, vol 1 (Frederick, MD: University Publications of America, 1986) at 2. Ireland, “Burned,” above note 4 at 144. Ireland, “Founding,” above note 28 at 229.

Chapter 5: The Caroline 1 Original from the Montreal Herald, reproduced in Francis Roswell, “The Cutting Out of the Caroline” (1838), extract online: https://archive.org/details/ cuttingoutofcaro00capt. 2 Charles Lindsey, The Life and Times of W.M. Lyon Mackenzie (Toronto: PR Randall, 1862) vol 2 at 141. But note Francis Bond Head denied that the British shelled the insurgent forces prior to the Caroline raid. See Francis Bond Head to Henry Stephen Fox (8 January 1838) in Correspondence between Viscount Palmerston & Mr. Stevenson, Relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River, on the Night of the 29th December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada, UKNA, FO 881/12 at 12, online: https://archive.org/details/cihm_46050 [Palmerston Correspondence]. I have seen no other indication that Canadian shelling of Navy Island began before January 1838. 3 Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, vol 1 (Frederick, MD: University Publications of America, 1986) at 122. 4 Lindsey, above note 2 at 139 et seq. 276

Notes for Pages 31–32 5 John Ireland, “Andrew Drew: The Man Who Burned the Caroline” (1967) 59 Ontario History 137 at 144–45, certainly takes this view. 6 Circular of the Erie District Attorney (30 December 1837), in Correspondence relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 32 [Caroline Correspondence]; US District Attorney WH Rogers to Allan Napier MacNab (29 December 1837), Doc 5, in Bourne, above note 3 at 3. MacNab denied these reports in a response to Rogers dated that same day (Doc 6, ibid at 4). 7 John Elmsley to Allan Napier MacNab (29 December 1837) in Palmerston Correspondence, above note 2 at 16. Lt Elmsley’s account was corroborated by an American affiant, Amos Sawyer. Deposition of Amos Sawyer et al (9 January 1838) in Palmerston Correspondence, above note 2 at 23. See also Lindsey, above note 2 at 140. This may be the same incident mentioned by MacNab in a 29 December complaint to the US district attorney, although that MacNab letter suggests the events took place on 28 December. See Allan Napier MacNab to WH Rogers (29 December 1837), Doc 6, in Bourne, above note 3 at 4. 8 Elmsley to MacNab, above note 7 at 16; deposition of Lieutenant John Elmsley (27 November 1838) (ibid at 70). 9 Deposition of Sawyer, above note 7 at 23; NS Benton to John Forsyth (6 February 1838) in Palmerston Correspondence, above note 2 at 32. 10 William Lockwood, First Lieutenant of the St Catharine’s Troop of Cavalry, to Allan Napier MacNab (29 December 1837) in Palmerston Correspondence, above note 2 at 15. See also MacNab to Rogers, above note 7 at 4. 11 NS Benton to John Forsyth (6 February 1838) in Palmerston Correspondence, above note 2 at 31–32. 12 Ibid. 13 The shooting reportedly took place two miles “below” (presumably downriver from) Black Creek. Lockwood to MacNab, above note 10 at 15. The distance to Grand Island from this point is approximately 730 metres. It is not known what sorts of small arms the insurgents were using. But, for example, the Baker Infantry Rifle — an advanced weapon in use in the British infantry from 1801 to 1838 — had a range of up to 200 yards (182 metres). See Eric Edwards, “Baker Rifle 1884.27.39,” online: http://web.prm.ox.ac.uk/rpr/index.php/ object-biography-index/19-prmcollection/68-baker-rifle-18842739.html. 14 Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode & Co, 1864) at 6. British excitement at spotting the Caroline on 29 December is confirmed by a US affiant, who claimed to have been present at the Chippawa encampment. That affiant also claimed that the intent of the subsequent mission was to capture the boat, and that all knew the boat was berthed at Fort Schlosser. But he also incorrectly identifies the commander of the raiding mission, saying it was assigned to Captain Mosier and not Commander Drew. This affiant claimed that the raiding party included Alexander McLeod, a figure who, as discussed below, became a further source of contention between the United States and Great 277

Notes for Pages 32–35

15

16 17

18

19 20 21

22

23

24 25 26

27 28

Britain. Deposition of Norman Barnum (31 December 1837) in Palmerston Correspondence, above note 2 at 25. Enrollment, No 49 (1 December 1837), ibid at 51. It is not clear how accurate this enrollment was. In the early twentieth century, considerable efforts were made to trace the boat’s history, with mixed results. Frank Severance, ed, Publications of the Buffalo Historical Society: The Book of the Museum, vol 25 (Buffalo: Buffalo Historical Society, 1921) at 195–97. “Opening and Closing of the Hudson River and the Erie Canal and Lake Erie” (1852) 26 Hunt’s Merchants’ Magazine and Commercial Review 640. “Opening Speech of the Attorney-General” in the Trial of Alexander McLeod (4 October 1841) Circuit Court, 5th Judicial District of the State of New York, Gould’s Stenographic Reporter, vol 2 (Washington, DC: 1841) at 23. Viscount Palmerston to Andrew Stevenson (27 August 1841) in Palmerston Correspondence, above note 2 at 59–60. See also the deposition of William Hamilton Marrity (18 April 1838) (ibid at 66). NY district marshal to the president of the United States (28 December 1837) in Caroline Correspondence, above note 6 at 22. Deposition of Jack Harris (6 May 1838), in Palmerston Correspondence, above note 2 at 63; deposition of Commander Andrew Drew, no date (ibid at 76). Deposition of Samuel Wood, no date, in Palmerston Correspondence, above note 2 at 80. See also the deposition of Sylvanus Fearnes Wrigley (30 December 1837), ibid at 19 (claiming that the Caroline had ferried a six-pound cannon to Navy Island). Even the Caroline’s captain, Gilman Appleby, reportedly conceded in 1841 that he had hauled “one piece of Ordnance on Navy Island, and that the owner of the steamer was cognizant of the service she was employed upon.” Sir George Arthur to Henry Stephen Fox (12 January 1841), Doc 64, in Bourne, above note 3 at 114. Deposition of John Radenhurst (24 November, no year), in Palmerston Correspon­dence, above note 2 at 68; deposition of Commander Andrew Drew (no date), ibid at 77. See also Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72, in Bourne, above note 3 at 122. John W Barber & Henry Howe, Historical Collections of the State of New York: History and Antiquities (New York: S Tuttle, 1842) at 356–57; “Opening Speech of the Attorney-General” in the Trial of Alexander McLeod, above note 17; Testimony of Daniel Stewart (ibid at 52). Reproduced from Barber & Howe, above note 23 at 356. Allan Napier MacNab to WH Rogers (29 December 1837), Doc 5, in Bourne, above note 3 at 3. Deposition of Lieutenant John Elmsley (27 November 1838) in Palmerston Cor­respondence, above note 2 at 69; deposition of Commander Andrew Drew, no date at 76 (ibid). Deposition of John Radenhurst (24 November, no year) in Palmerston Correspondence, above note 2 at 67. Deposition of Commander Andrew Drew (no date), ibid at 78. See also Sir George Arthur to Lord Sydenham (1 February 1841), UKNA, FO 414/8 at 296. 278

Notes for Pages 35–38 29 Palmerston to Stevenson, above note 2 at 59. 30 Lindsey, above note 2 at 142. 31 Deposition of Commander Andrew Drew (no date), Palmerston Correspondence, above note 2 at 78. 32 Robert Coakley, The Role of Federal Military Forces in Domestic Disorders 1789–1878 (Washington: Center of Military History, 2011) at 112. NY district marshal to the president of the United States (28 December 1837) in Caroline Correspondence, above note 6 at 22. See also Sir George Arthur to Lord Sydenham (1 February 1841), UKNA, FO 414/8 at 296–97 (recounting the reasons why MacNab reasonably arrived at the conclusion that no effective assistance could be expected from the United States government).

Chapter 6: The Raid 1 Robina Lizars & Kathleen MacFarlane Lizars, Humours of ’37: Grave, Gay and Grim: Rebellion Times in the Canadas (Toronto: William Briggs, 1897) at 224. 2 Indeed, the Canadians may have been expecting its arrival. Affidavit of Alexander McLeod (no date), UKNA, FO 414/8 at 278 (suggesting that McLeod, soon to be famous for reasons explained in a subsequent chapter, had been part of a boat crew reconnoitering Navy Island in search of the Caroline on 28 December). McLeod may have warned the Canadians of the boat’s requisition by the insurgents. See Sir George Arthur to Henry Stephen Fox (1 February 1841) and Henry Stephen Fox to John Forsyth (29 December 1840) in Papers Related to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 414 at 74. Alexander McLeod to Sir Charles Bagot found in Sir Charles Bagot to Lord Stanley (5 May 1842), UKNA, FO 5/614 at 43, 44, & 45. 3 Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode & Co, 1864) at 6. 4 Ibid. 5 Deposition of Allan Napier MacNab (13 September 1841), in “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841) in Gould’s Stenographic Reporter, vol 2 (Washington, DC: 1841) at 122; Charles Lindsey, The Life and Times of W.M. Lyon Mackenzie, vol 2 (Toronto: PR Randall, 1862) at 147. 6 Deposition of MacNab, above note 5 at 128. 7 Lizars & Lizars, above note 1 at 218. 8 Lieutenant-Governor Head told the British ambassador to the United States that the raiders first sought to tow the Caroline across the river, before abandoning that effort in the face of rapid currents. Francis Bond Head to Henry Stephen Fox (8 January 1838), Correspondence between Viscount Palmerston & Mr. Stevenson, Relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River, on the Night of the 29th December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada, UKNA, FO 881/12 at 12, online: https://archive.org/details/cihm_46050 [Palmerston Correspondence]. A similar claim is made in Viscount Palmerston to Andrew Stevenson 279

Notes for Pages 38–39

9

10 11 12

13

14

15 16 17 18

(27 August 1841) (ibid at 59). But while secondary sources sometimes repeat that the Caroline was destroyed only after efforts to sail her across the river failed, I have found no such indication in the contemporary accounts of the raid’s participants. Drew, above note 3 at 7–8. See also Drew’s more contemporaneous affidavit, Deposition of Andrew Drew (10 January 1838) in Palmerston Correspondence, above note 8 at 18. (Drew “immediately gave orders for [the Caroline] to be cast off from the wharf to which she was moored, and to be set on fire.”) Drew, above note 3 at 7. Palmerston to Stevenson, above note 8 at 59. Drew reports the boats were commanded by Lieutenants MacCormick, Beer, Elmsley, and Battersby, and Messieurs Harris, Lapenotiere, and Gordon. Drew, above note 3 at 8. The militia members were without uniforms — no uniforms had been issued for MacNab’s force and the “persons composing the expedition were dressed in their usual clothing.” Deposition of MacNab, above note 5 at 125. However, Drew himself may have been in uniform. Deposition of John Harris (ibid at 132). Deposition of Commander Andrew Drew (no date) in Palmerston Correspondence, above note 8 at 76. See also Andrew Drew to Allan Napier MacNab (30 December 1837), Doc 9, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 5. Drew’s belief is repeated in the deposition of John Radenhurst (24 November, no year) in Palmerston Correspondence, above note 8 at 67. See Lord Ashburton to Daniel Webster (28 July 1842), Doc 206, in Bourne, above note 13 at 332–33; Doc 1593, in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 766. See also George Arthur to Lord Sydenham (1 February 1841), UKNA, FO 414/8 at 297. Deposition of Lieutenant John Elmsley (27 November 1838) in Palmerston Correspondence, above note 8 at 69. Deposition of Jack Harris (6 May 1838), ibid at 63; deposition of John Harris, in “The Trial of Alexander McLeod,” above note 5 at 130. Drew, above note 3 at 8. Ibid. Drew’s later account seems more consistent with the evidence from other officers (such as Harris (6 May 1838), above note 16) and is consistent with the fact that the facilities at Navy Island were rudimentary and possibly inhospitable as a berthing site for a forty-five-ton steamboat. Moreover, other British officers noted how strong the current was around Navy Island. Deposition of John Radenhurst, above note 13 at 67. Local charts put the current at seven miles per hour (eleven km/h) (Drew, above note 3 at 7). It is entirely possible that the observations of the two officers — one who observed the Caroline making passage at night, and the other claiming it let off its steam at 5 p.m. — are reconcilable: sunset in the Niagara region on 29 December 1837 280

Notes for Pages 39–41

19 20

21

22

23

24 25

26

27 28

29 30 31

was at 4:32 p.m., meaning it may have been dark during the final transit from Navy Island prior to the docking at Schlosser. Finally, during the immediate aftermath of the raid, Drew may also have had a vested interest in suggesting an original intent to intercept the Caroline on British territory — such a position was consistent with an argument that exigencies (and not premeditation) obliged the (controversial) entry onto American territory. It is also clear that many of Drew’s men did not know the location of the Caroline or their destination until they arrived at it. See “The Trial of Alexander McLeod,” above note 5 at 136, 153, and 169. Deposition of Lieutenant John Elmsley, above note 15 at 69. Deposition of John Harris, above note 16 at 131. There are discrepancies in the witnesses’ assessment of the number of raiders. See Address of the Attorney-General of New York to the Jury, “The Trial of Alexander McLeod,” above note 5 at 326 (summarizing witness testimony placing the number of raiders between 40 and 65). The discrepancy may lie in a distinction between the number of men who set out (in seven boats) and the number who reached the Caroline (in five boats). Deposition of William Gaffeny (8 May 1838) in Palmerston Correspondence, above note 8 at 65. Deposition of Christopher Beer (8 May 1838), ibid at 65; deposition of Lieutenant McCormick (no date), ibid at 72. Deposition of John Radenhurst, above note 13 at 68; deposition of Charles S Finlayson (27 November 1838) in Palmerston Correspondence, above note 8 at 71 — ​describing the shot as aft, from his position at the bow). Deposition of Messrs William Seaman and William Kennedy (2 February 1838), ibid at 35; deposition of John C Haggerty (2 February 1838), ibid at 40; testimony of JC Haggerty, in “The Trial of Alexander McLeod,” above note 5 at 56. Drew, above note 3 at 10. Andrew Stevenson to Viscount Palmerston (22 May 1838) in Palmerston Cor­ respondence, above note 8 at 3. The United States provided affidavits claiming that the raiders were intent on a massacre, in one case recording a story the affiant had heard in a tavern from a person who claimed to have been part of the raiding party. Deposition of Samuel Longley (1 January 1838), ibid at 20. See also the deposition of Gilman Appleby (2 February 1838), ibid at 34. Deposition of John Radenhurst, above note 13 at 68. Deposition of Lieutenant John Elmsley, above note 15 at 69; deposition of Charles S Finlayson, above note 22 at 71; deposition of Lieutenant McCormick (no date), above note 21 at 73; deposition of Commander Andrew Drew (no date), above note 13 at 77. Head to Fox, above note 8 at 12. Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Sir George Arthur, The Arthur Papers, volume 1 (Toronto: University of Toronto Press, 1957) at 456. Deposition of Lieutenant John Elmsley, above note 15 at 69; John Harris, in “The Trial of Alexander McLeod,” above note 5 at 133. Drew to MacNab, above note 13 at 45. Palmerston to Stevenson, above note 8 at 61. 281

Notes for Pages 41–43 32 Stevenson to Palmerston, above note 25 at 3. Indeed, the ship’s master, Gilman Appleby, swore that the Caroline “was abandoned without resistance, and the only effort made by either the crew or passengers seemed to be to escape slaughter.” Deposition of Gilman Appleby (30 December 1837) in Palmerston Correspondence, above note 8 at 7–8. See also the deposition of Gilman Appleby et al (31 December 1837), ibid at 25; deposition of Luke Walker (1 January 1838), ibid at 26; deposition of Alford Luce (1 January 1838), ibid at 27. 33 See, for example, deposition of Lieutenant McCormick, above note 21 at 73. 34 Palmerston to Stevenson, above note 8 at 59. See also Arthur to Glenelg, above note 28, volume 1 at 455. 35 Palmerston to Stevenson, above note 8 at 61. 36 Deposition of Commander Andrew Drew, above note 13 at 76. 37 Palmerston to Stevenson, above note 8 at 61. 38 Deposition of Charles S Finlayson, above note 22 at 71. 39 Lieutenant Elmsley, in command of the fourth boat, reported that most of the party were armed with cutlasses and swords, but “some few had pistols loaded with ball” (but not buckshot). He also noted that, but for Commander Drew’s orders to let the Caroline’s company flee unmolested, he would have “fired” on those fleeing to the shore. Deposition of Lieutenant John Elmsley, above note 15 at 69–70. In fact, the evidence from British witnesses that they had pistols is overwhelming. See “The Trial of Alexander McLeod,” above note 5 at 125, 132, 137, 143, 149, 159, 165, 171, 176, 181, 183, and 188. 40 Deposition of Gilman Appleby, above note 25 at 33. 41 Deposition of Messrs William Seaman and William Kennedy, above note 23 at 35; deposition of James H King (1 February 1838) in Palmerston Correspondence, above note 8 at 39. 42 See, for example, “The Trial of Alexander McLeod,” above note 5 at 132, 143, 149, 154, 159, 171, and 176. 43 Drew, above note 3 at 10–11. Drew originally thought he had killed one of these men. Deposition of Commander Andrew Drew, above note 13 at 77. One of these wounded men may have been the individual that other members of the raiding party carried ashore before cutting the boat from its mooring. See the deposition of William Gaffeny, above note 21 at 65; and the deposition of Christopher Beer, ibid. 44 Deposition of Commander Andrew Drew, above note 13 at 77. 45 Deposition of John Radenhurst, above note 13 at 67. 46 Deposition of Lieutenant McCormick, above note 21 at 73. Deposition of Shephard McCormick, in “The Trial of Alexander McLeod,” above note 5 at 171. 47 Deposition of Gilman Appleby, above note 25 at 33. 48 Deposition of John Radenhurst, above note 13 at 67; Drew discovered the boy in his boat and thereafter gave him a bed in his quarters at Chippawa and then paid his way across the river; he was to be received by the US marshal. Deposition of Commander Andrew Drew, above note 13 at 77. The second prisoner was Sylvanus Wrigley (a British subject). 49 Drew, above note 3 at 11. 282

Notes for Pages 43–44 50 Ibid. 51 Deposition of Christopher Beer, above note 21 at 65. Deposition of John Radenhurst, above note 13 at 67; deposition of Charles S Finlayson, above note 22 at 71; deposition of Commander Andrew Drew, above note 13 at 76; various depositions in “The Trial of Alexander McLeod,” above note 5 at 132, 161, 167, and 177. 52 Drew to MacNab, above note 13 at 45; deposition of Jack Harris, above note 16 at 64; deposition of Lieutenant John Elmsley, above note 15 at 70; deposition of Commander Andrew Drew, above note 13 at 76. Several of Drew’s men also asserted that the boat was empty before being cut out. See, for example, the deposition of William Light in “The Trial of Alexander McLeod,” above note 5 at 144. See also William Light to Allan Napier MacNab (17 November 1841), Archives of Ontario, North York, ON, Allan Napier MacNab fonds, F 38. 53 Deposition of Andrew Drew, above note 9 at 18; deposition of Commander Andrew Drew, above note 13 at 76. The last raider off the ship with Drew may have been John Harris. Deposition of John Harris, above note 16 at 129. It might also have been WV Light. See Light to MacNab, above note 52. Drew reports almost being left behind as he conducted his final inspection and his boats pulled away from the flaming steamboat. Drew, above note 3 at 12. 54 Ibid. 55 Stevenson to Palmerston, above note 25 at 3. 56 Drew, above note 3 at 12. 57 Robert B Ross, “The Patriot War” in Michigan Pioneer and Historical Society, Historical Collections, vol 21 (Lansing: Robert Smith & Co, 1894) at 519. 58 The two prisoners — Sylvanus Wrigley (a British subject) and Luke Walker (an American youth) — would later swear affidavits in the diplomatic dispute. In fact, Luke Walker would swear affidavits on both sides of the Canada/US border, with slightly different emphases. 59 Drew, above note 3 at 13. 60 Drew to MacNab, above note 13 at 45. 61 Deposition of Commander Andrew Drew, above note 13 at 77. 62 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 15. See also Francis Bond Head to Henry Stephen Fox (30 January 1838), Doc 24, in Bourne, above note 13 at 20 (reporting also that Durfee was the only confirmed casualty, despite rumours of many more, and, in addition, claiming that Durfee was a British subject, until recently a resident of Canada). Durfee’s name is variously spelled as Durfee or Durfie. 63 Deposition of Gilman Appleby, above note 25 at 34; “Indictment” in “The Trial of Alexander McLeod,” above note 5 at 17; Ross, above note 57 at 519. 64 Affidavit of Alford Luce (12 January 1838), UKNA, FO 414/8 at 339. 65 “The Trial of Alexander McLeod,” above note 5. 66 Palmerston to Stevenson, above note 8 at 61. At least one man present at the raid thought the killing shot came from the shore. Deposition of Edward Zealand, in “The Trial of Alexander McLeod,” above note 5 at 135. One Canadian 283

Notes for Pages 44–47

67

68

69 70

71

72

witness reported a man sprawled on the landing before the volley of musket fire from the shore; the witness supposed him dead, but did not confirm: Deposition of Charles S Finlayson, above note 22 at 71. Another spotted a dead man on the dock, without specifying the timing: Deposition of Lieutenant John Elmsley, above note 15 at 69. Several Canadian witnesses describe carrying a wounded man ashore (ibid); deposition of William Gaffeny, above note 21 at 65; deposition of William Smart Light, above note 5 at 141. The wound in question was described by one witness as a sabre cut, suggesting that this was possibly one of the men that Drew or McCormick fended off when they boarded. Deposition of Jack Harris, above note 16 at 64. However, the man whom Drew recalls ordering to be carried ashore was wounded by a shot to the head, and found in a cabin: deposition of Commander Andrew Drew, above note 13 at 77. This may have been James King, who describes being set ashore after being wounded in a cabin by sabre cuts and a blow to the head (that did nothing more than cut through his hat): deposition of James H King, above note 41 at 39. And one Canadian witness claims (cryptically) to have seen one man killed, but none aboard the Caroline: deposition of John Radenhurst, above note 13 at 64. Whether the prone man on the dock was Durfee, and whether he was wounded in the skirmish and then killed in friendly fire, is now impossible to ascertain. But the Elmsley deposition suggests that there was both a dead man on the dock and a second, injured man deposited there by the Canadians. Drew seemed to believe that the man shot in the head who he ordered carried ashore ultimately died: deposition of Commander Andrew Drew, above note 13 at 77. Henri Pilon, “Elmsley, John” in Dictionary of Canadian Bibliography, vol 9 (1861– 1870), online: www.biographi.ca/en/bio/elmsley_john_1801_63_9E.html. See also Roland Nafus, Navy Island: Historic Treasure of the Niagara (Youngstown: Old Fort Niagara Publications, 1998) at 90. I have not been able to find original sources containing an admission by Elmsley. Note that the Caroline’s master, Gilman Appleby, swore that Durfee was killed by musket, in the back of the head. If this is correct, it would tend to support a friendly fire theory, since there is little evidence that the raiders were armed with muskets (as opposed to pistols). Deposition of Appleby (30 December 1837), above note 32 at 8. Stevenson to Palmerston, above note 25 at 3. The Caroline’s master claimed that twelve persons were missing and either murdered or sent over the Falls: Deposition of Gilman Appleby (30 December 1837), ibid at 8. NS Benton to John Forsyth (6 February 1838), ibid at 31. The boat’s master claimed to have seen Little Billy shot during the raid: deposition of Gilman Appleby, above note 25 at 34. Others among the ship’s company were unable to corroborate this claim. See assorted depositions in Palmerston Correspondence, above note 8 at 38 et seq. Deposition of Lieutenant John Elmsley, above note 15 at 70. This position was denied by Gilman Appleby, in his testimony in “The Trial of Alexander McLeod,” above note 5 at 61. Deposition of Samuel Wood (no date) in Palmerston Correspondence, above note 8 at 81. 284

Notes for Pages 47–51 73 See “Destruction of the Caroline,” published in the Rochester Democrat and reproduced in Lindsey, above note 5 at 153–55.

Chapter 7: Aftermath 1 Timothy Johnson, ed, Memoirs of Lieut.-General Winfield Scott (Knoxville: University of Tennessee Press, 2015) at 158. 2 Allan Napier MacNab to JM Strachan (30 December 1837) in Correspondence relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 49 [Caroline Correspondence]. 3 JM Strachan to Allan Napier MacNab (1 January 1838), ibid at 50. 4 Affidavit of Thomas Moxey (9 January 1838), Doc 17, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 9 [Bourne]. 5 Deposition of Samuel Wood (no date) in Correspondence between Viscount Palmerston & Mr. Stevenson relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River on the Night of the 29th of December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada (1841), UKNA, FO 881/12 at 82, online: https://archive.org/details/cihm_46050 [Palmerston Correspondence]. 6 Allan Napier MacNab to JM Strachan (19 January 1838) in Caroline Correspondence, above note 2 at 79. See also Francis Bond Head to Henry Stephen Fox (30 January 1838), Doc 24, in Bourne, above note 4 at 22. 7 John Elmsley to Andrew Drew (10 January 1838), Doc 16, in Bourne, ibid at 9. 8 Henry Arcularius to Allan Napier MacNab (2 January 1838); Allan Napier MacNab to Henry Arcularius (2 January 1838); Allan Napier MacNab to Henry Arcularius (3 January 1838); Henry Arcularius to Allan Napier MacNab (5 January 1838) in Caroline Correspondence, above note 2 at 52–54 and 57. 9 Nathaniel Garrow, “Proclamation of the New York District Marshal” (4 January 1838), Doc 13, in Bourne, above note 4 at 8. 10 Johnson, above note 1 at 158. 11 Allan Peskin, Winfield Scott and the Profession of Arms (Kent, OH: Kent State University Press, 2003). 12 Thomas Wilson, The Biography of the Principal Military and Naval Heroes, vol 2 (New York: John Low, 1817) at 286–87. 13 Scott Kaufman & John Soares, “‘Sagacious Beyond Praise’? Winfield Scott and Anglo-​American–Canadian Border Diplomacy, 1837–1860” (2006) 30:1 Diplomatic History 57 at 57. 14 Ibid at 59. Samuel Watson, “United States Army Officers Fight the ‘Patriot War’: Responses to Filibustering on the Canadian Border, 1837–1839” (1998) 18 Journal of the Early Republic 485 at 490. 15 Ibid at 498. 16 Edwin Guillet, The Lives and Times of the Patriots (Toronto: Ontario Publishing, 1963) at 75. MacNab’s account places the militia force at 2,000 to 3,000. 285

Notes for Pages 51–52

17 18

19 20 21 22 23 24

25

Deposition of Sir Allan N MacNab (13 September 1841), in “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841), in Gould’s Stenographic Reporter, vol 2 (Washington: 1841) at 121. The Indigenous participation is affirmed in a subsequent letter to Queen Victoria from the Six Nations, congratulating the queen on the birth of her son. That letter described how the Six Nations assembled during the “revolt and invasion” and accompanied MacNab to the frontier. The letter is found in Archives of Ontario, North York, ON, Allan Napier MacNab fonds, F 38. It is likely these First Nations forces served under William Johnson Kerr (sonin-law of Joseph Brant), a Six Nations Mohawk and lieutenant colonel of the Six Nations. More than 500 Indigenous men mustered in defence of Canada in 1838 and 1839. The Mackenzie rebellion was probably the last time Six Nations members mobilized as a separate body of troops. See “The Indian Department and Six Nations Martial Tradition,” County of Brant Public Library, online: http://images.ourontario.ca/brant/2710274/data. See also “Pay List of the Warriors of the Six Nations Indians of Upper Canada, under the command of Colonel, the Honorable A.N. MacNab,” by Col William J Kerr, [no date], Archives of Ontario, North York, ON, Allan Napier MacNab fonds, F 38. British regulars were also present by this time. Two companies of the 24th Regiment of Foot were deployed from Lower Canada by 21 December 1837. George Paton, Farquhar Glennie, William Penn Symons, & HB Moffat, eds, Historical Records of the 24th Regiment (London: Simkin, Marshall, Hamilton & Knet, 1892) at 141. Henry Stephen Fox to Viscount Palmerston (21 January 1838) in Caroline Correspondence, above note 2 at 36. Robert Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789– 1878 (Washington: Center of Military History, 2011) at 115; see also Mr Cilley, “Discussion in the House of Representatives upon the President’s First Special Message respecting Maintenance of Neutrality upon the Canadian Frontier” in Caroline Correspondence, above note 2 at 30. Coakley, above note 18 at 158. Secretary of war to Winfield Scott (5 January 1838) in Caroline Correspondence, above note 2 at 14. Ibid. Henry Stephen Fox to counsel in New York (19 January 1838), UKNA, FO 97/17 at 107. Kaufman & Soares, above note 13 at 63. Johnson, above note 1 at 161. Proposed Attack upon Navy Island and Projected Attack on Navy Island (January 1838), Archives of Ontario, North York, ON, Allan Napier MacNab fonds, F 38. Note to Col Kerby (10 January 1838), Archives of Ontario, North York, ON, Allan Napier MacNab fonds, F 38. The British regiment that arrived on 10 January was the 24th Regiment of Foot, reassigned from Lower Canada and supplementing the two companies that had arrived at the Niagara Frontier on 21 December 1837. Paton, Glennie, Symons, & Moffat, above note 16 at 141. 286

Notes for Pages 52–54 26 Deposition of Samuel Wood, above note 5 at 82. Guillet, above note 16 at 84. Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode & Co 1864) at 14. 27 Scott’s forces may have arrived on a steamboat named the North American. Deposition of Samuel Wood, above note 5 at 82. 28 They may have had good reason to believe this. An American informant’s note to the Canadians suggested that up to 9 January, the Barcelona had been plying to Navy Island. Note to Col Kerby (10 January 1838), Archives of Ontario, North York, ON, Allan Napier MacNab fonds, F 38. And a member of the Caroline’s party reported that the Barcelona “came down after the Caroline was destroyed”: Cross-examination of JC Haggerty in “The Trial of Alexander McLeod,” above note 16 at 57. Scott may have acquired the steamboat’s services after this point. 29 CH Hughes to Scott (16 January 1838) in Caroline Correspondence, above note 2 at 73. 30 Winfield Scott to CH Hughes (20 January 1838), ibid at 74. Johnson, above note 1 at 162. See also Coakley, above note 18 at 116. 31 Winfield Scott to the Commanding Officer of the armed British Vessels in the Niagara (15 January 1838) in Caroline Correspondence, above note 2 at 76. 32 Allan Napier MacNab to Winfield Scott (18 January 1838), ibid at 76. Andrew Drew to Winfield Scott (16 January 1838), ibid. 33 Scott’s letter is found in Johnson, above note 1 at 160–61. Drew’s orders are reproduced in “Report of the Select Committee on the Petition of Philip Graham, Esq to the Honourable Commons House of Assembly,” Appendix to Journal of House of Assembly of Upper Canada (1839–1840). They instruct the commander of a British schooner to intercept the Barcelona and search it for rebels, but then subsequent orders seem to countermand this instruction. 34 Henry Francis Head to Andrew Drew (4 February 1838) in Papers Related to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 414 at 100. 35 MacNab to Scott, above note 32 at 76. 36 D Bethune to Allan Napier MacNab (19 January 1838) in Caroline Correspondence, above note 2 at 78. 37 Scott to Hughes, above note 30 at 74. 38 Roland Nafus, Navy Island: Historic Treasure of the Niagara (Youngstown: Old Fort Niagara Publications, 1998) at 91–93; Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​American–Canadian Relations, 1837– 1842 (Tuscaloosa: University of Alabama Press, 1989) at 21. 39 See Deposition of Samuel Wood, above note 5 at 82. 40 UK, HC, “Report of the Select Committee of the House of Assembly of Upper Canada” (30 April 1838), in House of Commons Papers, Copies of Extracts of Correspondence relative to the Affairs of Canada, 1839 (6 June 1839) at 15. 41 Coakley, above note 18 at 117. 42 Robert Ross, The Patriot War (Michigan Pioneer and Historical Society, 1890) at 49. 287

Notes for Pages 54–60 43 Stevens, above note 38 at 37. See British Steamboat Sir Robert Peel and American Steamboat Telegraph, “Message from the President of the United States” (20 June 1838), US, HR Doc No 440, 25th Congress, 2d Sess. The British were anxious to pursue compensation from the United States for this conduct, a course that their legal advisors concluded was appropriate. Report of Dodson (12 February 1841), UKNA, FO 83/2207 at 155. 44 Stevens, above note 38 at 38–41. 45 “Aroostook War,” in Encyclopaedia Britannica, online: www.britannica.com/ event/Aroostook-War; Johnson, above note 1 at 169 et seq; Watson, above note 14 at 498. 46 Henry Francis Fox to Viscount Palmerston (14 April 1841), Doc 96, in Bourne, above note 4 at 151. Guillet, above note 16 at 179, estimates the size of the Hunters’ Lodge movement to have been between 15,000 and 200,000 individuals — a large range that suggests much uncertainty.

Part II: Debating the Caroline 1 Published in the Rochester Democrat and reproduced in Charles Lindsey, The Life and Times of W.M. Lyon Mackenzie, vol 2 (Toronto: PR Randall, 1862) at 153–55. The reference to the “young boy’s quarter cry” gives poetic licence to the “monstrous rumour” that Drew had killed a cabin boy, a claim that Lindsey rejects.

Chapter 8: Grievance 1 Reproduced in the [London] Observer (5 February 1838). 2 Francis Bond Head to Lord Glenelg (10 January 1838), in Correspondence relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 41 [Caroline Correspondence]. 3 Charles Lindsey, The Life and Times of W.M. Lyon Mackenzie, vol 2 (Toronto: PR Randall, 1862) at 157. Some elements of the British press also condemned MacNab for exceeding his orders. See “The Seizure of the ‘Caroline,’” The [London] Examiner (14 March 1841) at 177. 4 See Alasdair Roberts, America’s First Great Depression (Ithaca: Cornell University Press, 2012) for the history of this crisis. 5 See Christian Esh, “Martin Van Buren as Statesman,” in Paul Moreno & Jonathan O’Neill, eds, Constitutionalism in the Approach and Aftermath of the Civil War (New York: Fordham University Press, 2013). 6 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 11–12. On Van Buren’s economic policies, see Roberts, above note 4 at 42 et seq and 87 et seq. See also Stevens, above in this note (at 92); Robert Remini, Daniel Webster (New York: WW Norton, 1997) at 535. 7 Roberts, above note 4 at 85. 8 For discussion, see ibid at 121 et seq. 288

Notes for Pages 61–65 9 Columns reproduced in Washington Intelligencer (8 January 1838), No 7770 [Washington Intelligencer]. 10 Column from Buffalo Commercial Advertiser (31 December 1837), reproduced in Washington Intelligencer, above note 9. 11 Ibid. 12 Ibid. 13 Ibid. These statements are found also in “Special Message of the Governor of New York respecting the destruction of the ‘Caroline’” (2 January 1838) in Caroline Correspondence, above note 2 at 20–21. 14 Gilman Appleby affidavit (30 December 1837) in Caroline Correspondence, above note 2 at 7–8. 15 Lindsey, above note 3 at 154–55. 16 Column from Buffalo Commercial Advertiser (30 December 1837), reproduced in Washington Intelligencer, above note 9. Also reproduced as Doc 10, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837– 1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 6. 17 Column from Rochester Democrat (1 January 1838), reproduced in Washington Intelligencer, above note 9; Robert Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878 (Washington: Center of Military History, 2011) at 113. 18 Column from Rochester Democrat (30 December 1837), reproduced in Washington Intelligencer, above note 9. 19 New York Morning Herald (4 January 1838), reproduced in [London] Metropolitan Conservative Journal (3 February 1838). 20 Reproduced in Observer [London] (5 February 1838). 21 Ibid. 22 Column from Buffalo Commercial Advertiser (31 December 1837), reproduced in Washington Intelligencer, above note 9. 23 Reproduced in ibid. 24 New York American, reproduced in ibid. 25 St James Chronicle and General Evening Post [London] (1 February 1838). 26 Cumberland Pacquet, and Ware’s Whitehaven Advertiser [Cumbria, England] (8 February 1838). 27 The [London] Courier (14 February 1838). 28 Ibid. 29 Reproduced in the Chronicle & Gazette and Kingston Commercial Advertiser (28 February 1838) at 2 (column 1). 30 Reproduced in the Chronicle & Gazette and Kingston Commercial Advertiser (7 March 1838) at 1 (column 4).

Chapter 9: Cl aim 1 John Forsyth to Henry Stephen Fox (5 January 1838), Doc 1204, in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 289

Notes for Pages 65–69

2 3

4 5 6 7 8 9 10

11 12

13 14 15

16 17 18 19 20 21

22

1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 32. See discussion in Kentarō Wani, Neutrality in International Law: From the Sixteenth Century to 1945 (London: Routledge, 2017) at 58–59. Francis Bond Head to Henry Stephen Fox (23 December 1837) in Correspondence relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 15 [Caroline Correspondence]. Ibid at 16. Ibid. Henry Stephen Fox to Consul in New York (19 January 1838), UKNA, FO 97/17 at 102. Henry Stephen Fox to Viscount Palmerston (21 January 1838) in Caroline Correspondence, above note 2 at 36. Private Letter addressed to “John,” in “despatch” by Francis Bond Head (26 December 1837), ibid at 42. Sir George Arthur to Henry Stephen Fox (15 November 1838) in UKNA, FO 97/18 at 66. Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 22. “Fox, Henry Stephen” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/10036. Beckles Willson, Friendly Relations: A Narrative of Britain’s Ministers and Ambassadors to America (1791–1930) (Freeport, NY: Books for Libraries Press, 1969) at 144–45. Kenneth Bourne, Palmerston: The Early Years, 1784–1841 (London: Allen Lane, 1982) at 466. Stevens, above note 10 at 22. So alleged a column printed in 1897 in the Washington Evening Star and reproduced in many American newspapers. See, for example, Galveston Daily News (15 October 1897). See also “Fox, Henry Stephen” in Oxford Dictionary of National Biography, above note 11. Willson, above note 12 at 151. Bourne, above note 13 at 467. Henry Stephen Fox to Charles Paget (15 March 1838), UKNA, FO 97/17 at 142. Stevens, above note 10 at 22. Alvin Laroy Duckett, John Forsyth: Political Tactician (Athens, GA: University of Georgia Press, 1962) at 70 and 80. Stevens, above note 10 at 22 & 23–24. His biographer is more generous (but also tentative), calling him “resourceful” and “capable” and ultimately successful, but acknowledging that Forsyth’s principal “forensic” talents were not ideally suited to the world of “skilled diplomats through the media of consultation and formal correspondence.” Duckett, above note 20 at 212. “Burning of the Caroline and the Case of McLeod,” Congressional Globe, 26th Congress, 2d Session (1841) at 171 [emphasis in original]. See also the list of 290

Notes for Pages 69–73

23 24 25

26

27 28 29 30 31

32 33

34

35

grievances, especially of British anti-slaving activities, in Speech of Mr Cushing in the House of Representatives (24 June 1841) in Caroline Correspondence, above note 3 at 44. Henry Stephen Fox to Viscount Palmerston (13 January 1838), ibid at 5. Fox to Palmerston, above note 7. United Kingdom, British and Foreign State Papers, vol 26 (1837–38) at 1377; Forsyth to Fox, above note 1 at 32. Fox updated Lord Palmerston in London by letter dated 13 January 1838, which was received on 15 February. Doc 22, Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America, 1837– 1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 18. President Van Buren, “Special Message of the President to Congress upon the Case of the ‘Caroline’” (8 January 1838) in Caroline Correspondence, above note 3 at 8–9. “Discussions of the Senate upon the Case of the ‘Caroline’” (9 January 1838), ibid at 9. Fox to Consul in New York, above note 6 at 103–4. Senators Clay & Calhoun, “Discussions of the Senate upon the Case of the ‘Caroline’” (9 January 1838) in Caroline Correspondence, above note 3 at 10. Mr Menefee, “Speeches of Messrs. Rhett and Menefee in the House of Representatives upon the Case of the ‘Caroline’” (8 January 1838), ibid at 13. Mr Hamer, “Discussion in the House of Representatives upon the President’s First Special Message respecting Maintenance of Neutrality upon the Canadian Frontier,” ibid at 29. Ibid at 11 (Mr Rhett of South Carolina). Ibid. See also Mr Menefee, ibid at 13 (urging that the United States had adopted a policy of impunity, if not encouragement, of breaches of international law in relation to neutrality). Stevens, above note 10 at 27–28. Albert Corey, The Crisis of 1830–1842 in Canadian-​American Relations (New Haven: Yale University Press, 1941) at 30 et seq. Neutrality Act of Mar 10, 1838, 5 Stat. 212. Edward Dumbauld, “Neutrality Laws of the United States” (1937) 31:2 American Journal of International Law 258 at 264.

Chapter 10: Impasse 1 Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Sir George Arthur, The Arthur Papers, vol 1 (Toronto: University of Toronto Press, 1957) at 456. 2 Henry Stephen Fox to John Forsyth (6 February 1838) in Correspondence between Viscount Palmerston & Mr. Stevenson relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River on the Night of the 29th of December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada (1841) at 9, online: https://archive.org/details/cihm_46050 291

Notes for Pages 73–75

3 4 5 6 7

8 9

10

11 12 13

[Palmerston Correspondence]. He persisted in this characterization in his report to Viscount Palmerston of 25 February 1838, Doc 31, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America, 1837–1914, Volume 1, McLeod and Maine, 1837–1842 (Frederick, MD: University Publications of America, 1986) at 29. Deposition of Luke Walker (30 December 1837) in Palmerston Correspondence, above note 2 at 18. Fox to Forsyth (6 February 1838), above note 2 at 9. Ibid. Henry Stephen Fox to Consul in New York (19 January 1838), UKNA, FO 97/17 at 103. Francis Bond Head to Henry Stephen Fox (8 January 1838) in Palmerston Correspondence, above note 2 at 13. Head would reassert similar points in later correspondence with Fox, as would his successor George Arthur. See, for example, Francis Bond Head to Henry Stephen Fox (30 January 1838), Doc 24, in Bourne, above note 2 at 20; Sir George Arthur to Henry Stephen Fox (12 January 1841), Doc 63 (ibid at 112–13); Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72 (ibid at 123). It was clearly a view shared in London. See, for example, Viscount Palmerston to Henry Stephen Fox (9 February 1841), Doc 66 (ibid at 115). Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Arthur, above note 1 at 456 (vol 1). John Forsyth to Henry Stephen Fox (13 February 1838) in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784– 1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 45. Years later, Governor Seward of New York would also assert that the federal government was “prompt in asserting and vigorous in enforcing neutrality” with the “cheerful and efficient co-operation” of New York. William Henry Seward to John Forsyth (27 February 1841), UKNA, FO 414/8 at 124. The evidence casts doubt on these statements, especially the claim about vigorous enforcement. Henry Stephen Fox to John Forsyth (16 February 1838) in Correspondence relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 81 [Caroline Correspondence]. Andrew Stevenson to John Forsyth (6 March 1838), Doc 1432, in Manning, above note 9 at 427. John Forsyth to Andrew Stevenson (12 March 1838), Doc 1212, in Manning, above note 9 at 48. Ibid at 51. This is a position with which the British legal advisors ultimately agreed. John Dodson to Viscount Palmerston (18 May 1841), in Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) at 229. “Pirates” were “Common Sea Rovers who acknowledge no Sovereign, and no Law and support themselves by pillage and depredations

292

Notes for Pages 75–78

14 15

16 17 18 19 20 21 22 23 24 25

26

27 28 29 30 31 32 33 34 35 36

at sea. The form, therefore, is not strictly applicable to the Citizens of the United States, who took part with the Canadian Insurgents.” Forsyth to Stevenson, above note 12 at 51. Andrew Stevenson to John Forsyth (14 April 1838), Doc 1438, in Manning, above note 9 at 437. Robert Remini, Daniel Webster (New York: WW Norton, 1997) at 536; Maurice Baxter, One and Inseparable: Daniel Webster and the Union (Cambridge: Harvard University Press, 1984) at 319. Andrew Stevenson to Viscount Palmerston (22 May 1838) in Palmerston Correspondence, above note 2 at 1. Andrew Stevenson to John Forsyth (24 May 1838), Doc 1446, in Manning, above note 9 at 466. Stevenson to Palmerston, above note 16 at 1. Ibid at 4. Ibid at 5. Ibid. Ibid. Ibid. Ibid. Ibid. Forsyth would later record his approval of Stevenson’s letter. John Forsyth to Andrew Stevenson (22 June 1838), Doc 1219, in Manning, above note 9 at 56. Viscount Palmerston to Andrew Stevenson (6 June 1838), Doc 1449, in ibid at 469. See also Viscount Palmerston to Andrew Stevenson (2 September 1841) in Palmerston Correspondence, above note 2 at 93. Stevenson repeatedly reported to Forsyth that he had received no response from Palmerston. See Andrew Stevenson to John Forsyth (12 December 1838), Doc 1455, in Manning, above note 9 at 474; Andrew Stevenson to John Forsyth (2 July 1839), Doc 1478 (ibid at 517). He also gently reminded Palmerston that the foreign secretary owed the United States a response. Andrew Stevenson to Viscount Palmerston (26 September 1839), Doc 1485 (ibid at 532–33). “The Seizure of the ‘Caroline,’” [London] Examiner (14 March 1841) at 177. Henry Stephen Fox to Viscount Palmerston (25 February 1838) in Caroline Correspondence, above note 10 at 79. This indeed was the theory advanced by some in the British press. See above note 27 at 177. Baxter, above note 15 at 321. [London] Examiner (21 March 1841) at 180. Kenneth Bourne, Britain and the Balance of Power in North America, 1815– 1908 (London: Longmans, 1967) at 83 [Bourne, Balance] Cited in Daniel Brown, Palmerston: A Biography (New Haven: Yale University Press, 2012) at 267. Jasper Ridley, Lord Palmerston (New York: EP Dutton & Company, 1970) at 262. “Temple, Henry John” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/27112. Ibid. See also Bourne, Balance, above note 32 at 85. 293

Notes for Pages 79–82 37 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 75. Bourne, Balance, above note 32 at 84. 38 Stevens, above note 37 at 34.

Chapter 11: Revival 1 Andrew Stevenson to Van Buren (9 February 1841), at Image 122 of Martin Van Buren Papers: Series 2, General Correspondence, 1787–1868; 1841; 1841, January– April, online: www.loc.gov/resource/mss43828.024_0348_0660/?sp=122. 2 See, for example, John Forsyth to Henry Stephen Fox (12 June 1838), Doc 1218, in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 56 [Manning]; John Forsyth to Henry Stephen Fox (15 November 1838), Doc 1221, in ibid at 57. 3 Extract from the Buffalo Journal, UKNA, FO 414/8 at 291. 4 John Forsyth to Andrew Stevenson (11 September 1839) in Manning, above note 2 at 91. 5 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 71–72. Alastair Watt, “The Case of Alexander McLeod” (1931) 12:2 Canadian Historical Review 145 at 163–64. Sir George Arthur to Henry Stephen Fox (1 February 1841) in Papers Related to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 414 at 74. Alexander McLeod to Charles Bagot, found in Charles Bagot to Lord Stanley (5 May 1842), UKNA, FO 5/614 at 43, 44, & 45. See also JE Rea, “McLeod, Alexander” in Dictionary of Canadian Biography, online: www.biographi.ca/en/bio/mcleod_alexander_10E.html. 6 McLeod to Bagot, found in Bagot to Stanley, above note 5 at 46. Alexander McLeod, Letter to the Editor, Scottish Journal (29 May 1841), UKNA, FO 414/8 at 136. 7 McLeod Statement (8 May 1841), UKNA, FO 414/8 at 119. 8 Ibid at 47. There were also rumours spread that McLeod had sharp dealings as sheriff, a claim that has been repeated by historians. That assertion seems belied by an affidavit sworn by the magistrates of Niagara District who called these “calumnies” “without foundation” and that they had been “assiduously spread by malicious individuals, enemies of the peace and social order, that such slanders might conduce to the conviction and execution of McLeod and consummate their ardent desired war between Great Britain and the United States.” Butler et al (June 1842), UKNA, FO 5/614 at 70. 9 Stevens, above note 5 at 71–72. 10 Niagara General Sessions, January Term 1838, in Correspondence between Viscount Palmerston & Mr. Stevenson, Relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River, on the Night of the 29th December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada, UKNA, FO 881/12 at 12, online: https://archive.org/details/cihm_46050 at 52 294

Notes for Page 82

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12

13

14

15

[Palmerston Correspondence]. Strangely, the bill for murder named none of the other known, key protagonists in the raid; included at least one who did not make it to the boarding (Usher); and included another (McLeod) whose presence (or not) became the core dispute of the single trial to follow from the raid. Indeed, the McLeod named in the indictment was an “Angus” McLeod, while the man who stood trial in 1841–1842 was Alexander McLeod. For the case against McLeod, see “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841), in Gould’s Stenographic Reporter, vol 2 (Washington: 1841). The two brothers, Angus and Alexander, apparently resembled one another. Deposition of James Fitzgerald (no date), Papers Related to the Arrest of Mr. McLeod in the State of New York, above note 5 at 74. Some of the names on the indictment do not seem to otherwise appear in the documentary history of the raid. See also Francis Bond Head to Henry Stephen Fox (30 January 1838), Doc 24, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 20 [Bourne]. Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 73. Viscount Palmerston to Henry Stephen Fox (19 January 1841), Doc 65, in Bourne, above note 11 at 115. The arrestees were likely Christie and Dawson. American authorities also reportedly arrested Zealand — a man of the same name was among the raiders. See Chronicle & Gazette [Kingston] (12 May 1838) at 2 (column 2) (Zealand); (12 September 1838) at 3 (column 1) (Christie); British Whig [Kingston] (24 April 1838) at 2 (column 3). The last two entries are referred to in the index prepared by Digital Kingston, online: www. digitalkingston.ca/historic-newspapers/browse-index-cards (Under “Caroline (ship),” field 78.) A “Zealand” is named among the raiders in Rear-Admiral Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode & Co, 1864) at 13. Alexander McLeod to William Henry Harrison (19 November 1840), Doc 44, in Bourne, above note 11 at 94; Sir George Arthur to John Russell (2 December 1840), Doc 45, ibid at 95. Watt, above note 5 at 165–66. See also Lord Metcalfe to Lord Stanley (7 April 1845), UKNA, FO 5/614 at 60 (where the Canadian legislative assembly comes to the same conclusion); affidavit of Bell (NY justice of the peace) (24 September 1842), ibid at 63 (expressing doubt that McLeod had boasted in the way claimed — ​an important observation since Bell was the justice of the peace before whom McLeod appeared when arrested). Stevens, above note 5 at 73. Sir George Arthur to Henry Stephen Fox (12 January 1841) in Papers Related to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 414 at 29 (expressing his strong suspicion that McLeod was “scheming for notoriety”). Lord Sydenham to Sir George Arthur (15 January 1841), Doc 1646, in Sir George Arthur, The Arthur Papers, vol 3 (Toronto: 295

Notes for Pages 82–87

16

17

18 19 20

21

22 23 24 25 26 27

28 29 30 31 32 33 34 35 36

University of Toronto Press, 1957) at 245 (“McLeod richly deserves hanging for his folly but if he got his deserts I do not see how war could be prevented . . . .”). See too in the British press, “The Seizure of the ‘Caroline,’” The [London] Examiner (14 March 1841) at 177. See the claim to this effect by Andrew Stevenson to Viscount Palmerston (31 August 1841) in Palmerston Correspondence, above note 10 at 91; Viscount Palmerston to Andrew Stevenson (2 September 1841), ibid at 93. McLeod to Harrison, above note 13 at 94; Arthur to Russell, above note 13 at 95; Attorney General to William Henry Harrison (16 December 1840), Doc 46, in Bourne, above note 11 at 95. See also Viscount Palmerston to Henry Stephen Fox (9 February 1841), Doc 66, ibid at 116. Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72, ibid at 124. Sir George Arthur to John Russell (2 December 1840), Doc 45, in Bourne, above note 11 at 95. Arthur to Fox, above note 15 at 112. Palmerston to Fox, above note 12 at 115. See also Palmerston to Fox, above note 17 at 115. JD Harding, AE Cockburn, & Richard Bethell to Earl of Clarendon (20 November 1854) in Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) vol 2 at 230. Henry Stephen Fox to John Forsyth (13 December 1840), Doc 1533, in Manning, above note 2 at 604. See also Henry Stephen Fox to Viscount Palmerston (27 December 1840), Doc 48, in Bourne, above note 11 at 98. John Forsyth to Henry Stephen Fox (26 December 1840), Doc 1262, in Manning, above note 2 at 127–29. Watt, above note 5 at 152. Henry Stephen Fox to John Forsyth (29 December 1840), Doc 1534, in Manning, above note 2 at 605–6. John Forsyth to Henry Stephen Fox (31 December 1840), Doc 1263, in Manning, above note 2 at 129. See the assessment of Stevens, above note 5 at 77. Henry Stephen Fox to Sir George Arthur (3 January 1841), Doc 60, in Bourne, above note 11 at 108. Fox expressed considerable contempt for this view and a pointed lack of interest in the niceties of American federalism. Palmerston to Fox, above note 17 at 116. Fox to Palmerston, above note 21 at 98. Fox to Arthur, above note 27 at 108. Henry Stephen Fox to Viscount Palmerston (10 January 1841), Doc 61, in Bourne, above note 11 at 110. Ibid. See also Watt, above note 5 at 10. Fox to Palmerston, above note 31 at 110. Sir George Arthur to John Russell (25 January 1841), Doc 69, in Bourne, above note 11 at 120. Henry Stephen Fox to Viscount Palmerston (26 January 1841), Doc 70, ibid at 121. William Henry Seward to John Forsyth (27 February 1841), UKNA, FO 414/8 at 123. 296

Notes for Pages 87–91 37 “Burning of the Caroline and the Case of McLeod” Congressional Globe, 26th Cong, 2d Sess (1841) at 170. 38 Ibid. 39 Ibid at 171. 40 Sydenham to Arthur, above note 15 at 244–45. McLeod would later suggest, perhaps unfairly, that the government officials in Canada had been uninterested in this plan. See Alexander McLeod to Secretary for the Colonies (April 1853), UKNA, FO 5/614 at 83. 41 Arthur to Russell, above note 34 at 292. 42 Resolution passed by a mob at Lockport (27 January 1841), UKNA, FO 5/614 at 88. 43 Ibid at 81. Watt, above note 5 at 154. Henry Stephen Fox to Viscount Palmerston (5 February 1841) in Papers Related to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 414 at 33. Extract from the New York Commercial Advertiser (3 February 1841), ibid at 34. Extract from New York Herald (10 February 1841), ibid at 41. S Brough to attorney general (28 January 1841), ibid at 65. Alexander McLeod, Letter to the Editor, Scottish Journal (29 May 1841), UKNA, FO 414/8 at 136. 44 Stevens, above note 5 at 83. 45 McLeod to Bagot, found in Bagot to Stanley, above note 5 at 41. 46 Stevens, above note 5 at 82. Henry Stephen Fox to John Forsyth (8 February 1841), Doc 1539, in Manning, above note 2 at 610. 47 Palmerston to Fox, above note 17 at 117. Fox would notify other British officials of these instructions in March 1841. Henry Stephen Fox to Viscount Palmerston (15 March 1841), Doc 88, in Bourne, above note 11 at 142. 48 Viscount Palmerston to William Temple (9 February 1841) in Evelyn Ashley, The Life of Henry John Temple, Viscount Palmerston, vol 3 (London: Richard Bentley & Son, 1874) at 46. 49 Viscount Melbourne, Mr. M’Leod — United States, UK, HL Parliamentary Debates, vol 56, cols 364–66 (8 February 1841). 50 Lord Sydenham to Russell (10 April 1841), UKNA, FO 414/8 at 348. 51 Andrew Stevenson to John Forsyth (9 February 1841), Doc 1540, in Manning, above note 2 at 611. 52 Andrew Stevenson to Martin Van Buren (9 February 1841), at Image 122 of Martin Van Buren Papers: Series 2, General Correspondence, 1787–1868; 1841; 1841, January–April, online: www.loc.gov/resource/mss43828.024_ 0348_0660/?sp=122. Stevens, above note 5 at 87. Albert Corey, “Public Opinion and the McLeod Case” (1936) 15:1 Canadian Historical Association 53 at 58.

Chapter 12: Renewal 1 “The McLeod Case. Speech of Mr. Adams, of Mass. On the resolution calling for information in relation to the McLeod case, September 1, 1841” Niles’ National Register (25 September 1841) at 60. 2 Richard Current, “Daniel Webster” in Encyclopaedia Britannica, online: www.​ britannica.com/biography/Daniel-Webster. 297

Notes for Pages 91–94 3 Maurice Baxter, One and Inseparable: Daniel Webster and the Union (Cambridge, MA: Harvard University Press, 1984) at 320; Robert Remini, Daniel Webster (New York: WW Norton, 1997) at 499. 4 Ibid at 484 and 497. 5 Ibid at 499. 6 Alasdair Roberts, America’s First Great Depression (Ithaca: Cornell University Press, 2012) at 49, 52, and 54. 7 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 92. 8 Roberts, above note 6 at 66. 9 Henry Stephen Fox to Lord Aberdeen (12 October 1841), Doc 156, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 233 [Bourne]. 10 Stevens, above note 7 at 88 and 95. Alastair Watt, “The Case of Alexander McLeod” (1931) 12:2 The Canadian Historical Review 145 at 155. 11 Henry Stephen Fox to Viscount Palmerston (5 August 1841), Doc 124, in Bourne, above note 9 at 182. 12 Henry Stephen Fox to Palmerston (7 March 1841), Doc 85, ibid at 140. 13 See, for example, Lewis Cass to Daniel Webster (15 March 1841) in Kenneth Shewmaker, ed, The Papers of Daniel Webster, Diplomatic Papers, Volume 1, 1841–1843 (Hanover, NH: University Press of New England, 1983) at 45. 14 The [London] Examiner (28 March 1841) at 195. 15 See Albert Corey, “Public Opinion and the McLeod Case” (1936) 15:1 Canadian Historical Association 53 at 59 (reproducing several newspaper passages). See also Stevens, above note 7 at 97. 16 Andrew Stevenson to Daniel Webster (9 March 1841), Doc 1542, in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 614–15. See Andrew Stevenson to Daniel Webster (18 March 1841) in Shewmaker, above note 13 at 49; Doc 1544, in Manning (at 619). (Reporting that the “[p]ress and the people, are under deep excitement” because of McLeod, the Caroline dispute, as well as boundary disputes on the Canadian frontier, and financial matters.) Not all in the British press were sympathetic to the British complaint, or the conduct of the Caroline raiders; instead seeing them as provocateurs in an unnecessary battle. See “The Seizure of the ‘Caroline,’” The Examiner [London] (14 March 1841) at 177. That paper’s sympathies to the American position ignited a stern rebuttal from other papers, which pointed out that the occupiers of Navy Island had been busily shelling Chippawa. See Morning Chronicle [London] (15 March 1841). 17 E Vernon Harcourt to Daniel Webster (12 March 1841) in George Ticknor Curtis, Life of Daniel Webster, 4th ed, vol 2 (New York: D Appleton, 1872) at 62, n1. 18 Fox to Palmerston, above note 12 at 140.

298

Notes for Pages 95–97 19 See, for example, Count Nesselrode to Alexander de Bodisco (18/30 March 1841) (reporting on Russian views) in Shewmaker, above note 13 at 51; Lewis Cass to Daniel Webster (15 March 1841) (reporting on French views) (ibid at 44); Andrew Stevenson to Daniel Webster (19 April 1841), Doc 1548, in Manning, above note 16 at 627 (describing Russian views). 20 Kenneth Bourne, Britain and the Balance of Power in North America, 1815– 1908 (London: Longmans, 1967) at 102 [Bourne, Britain]. 21 Memorandum by the Duke of Wellington (31 March 1841), UKNA, WO 1/536 at 157. See also ibid at 158. 22 Memorandum upon the Canadian Frontier (November 1840), UKNA, WO 1/536 at 136. 23 Ibid at 139. 24 Memorandum by the Duke of Wellington, above note 21 at 158. 25 Memorandum upon the Canadian Frontier, above note 22 at 141. 26 Lord Sydenham to Henry Stephen Fox (3 August 1841), UKNA, FO 414/8. 27 Henry Stephen Fox to Viscount Palmerston (27 December 1840), Doc 48, in Bourne, above note 9 at 98–99. There is a hint of Canadian concern in the UK, House of Commons Papers 1839, “Report of the Select Committee of the House of Assembly of Upper Canada” (30 April 1838), in Copies of Extracts of Correspondence relative to the Affairs of Canada (6 June 1839) at 13, where the committee calls on the British to provide protection against the continued depredations of insurgents, in conspiracy with American citizens, and confronted with the delinquency of the American government in suppressing attacks. 28 Henry Stephen Fox to Consul in New York (19 January 1838), UKNA, FO 97/17 at 104. 29 Sir George Arthur to Henry Stephen Fox (15 November 1838), UKNA, FO 97/18 at 70. 30 Admiralty List Books (1838), UKNA, ADM 8/118. See also Bourne, Britain, above note 20 at 79. 31 Ibid at 88. 32 Stevens, above note 7 at 50–51. 33 See Stevenson to Webster, above note 16 at 49. 34 Stevenson to Webster, above note 16 at 614–15. See also Andrew Stevenson to Daniel Webster (7 April 1841), Doc 1547 (ibid at 626). 35 See Andrew Stevenson to Daniel Webster (9 March 1841), Doc 1542, in Manning, above note 16 at 615; Andrew Stevenson to Daniel Webster (18 June 1841), Doc 1554, in Manning, above note 16 at 638. 36 Stevens, above note 7 at 98. 37 Lewis Cass to Daniel Webster (5 March 1841) in Shewmaker, above note 13 at 38. 38 Admiral Sir R Stopford to Admiralty (4 November 1840) in Robert Burford, Description of a View of the Bombardment of St. Jean d’Acre (London: Geo Nichols, 1841) at 4. 39 Cited in James Cable, The Political Influence of Naval Force in History (New York: St. Martin’s Press, 1998) at 62. 299

Notes for Pages 97–102 40 Annual Report of the Secretary of the Navy (4 December 1841), Message from the President of the United States to the Two Houses of Congress, Doc 2 (7 December 1841) (Washington: Gales and Seaton, 1841) at 350–51 & 352. 41 Ibid at 337. 42 Ibid at 361. 43 Ibid at 351. See also discussion in Roberts, above note 6 at 115. 44 Stevens, above note 7 at 85. 45 R Jackson to Lord Fitzroy (1 December 1842), UKNA, WO 1/538 at 311. 46 Robert Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878 (Washington: Center of Military History, 2011) at 118. Bourne, Britain, above note 20 at 99. 47 Roberts, above note 6 at 113. 48 Ibid. 49 “Burning of the Caroline and the Case of McLeod” Congressional Globe, 26th Congress, 2d Sess (1841) at 171 [emphasis in original]. 50 Ibid. 51 William Henry Seward to Daniel Webster (22 September 1841), Doc 1275, n 1, in Manning, above note 16 at 153. 52 “The McLeod Case. Speech of Mr. Adams, of Mass. On the resolution calling for information in relation to the McLeod case, September 1, 1841” in Niles’ National Register (25 September 1841) at 60. 53 Ibid.

Chapter 13: Debate 1 Daniel Webster to Henry Stephen Fox (24 April 1841) in “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841), in Gould’s Stenographic Reporter, vol 2 (Washington: 1841) at 365 and 369. 2 Henry Stephen Fox to Daniel Webster (12 March 1841) in “The Trial of Alexander McLeod,” above note 1 at 360. 3 Ibid. 4 Henry Stephen Fox to Viscount Palmerston (12 March 1841), Doc 87, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837– 1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 141. 5 Daniel Webster to John Crittenden (15 March 1841) in Kenneth Shewmaker, ed, The Papers of Daniel Webster, Diplomatic Papers, Volume 1, 1841–1843 (Hanover, NH: University Press of New England, 1982) at 47. 6 Daniel Webster to Joshua Spencer (11 March 1841), ibid at 41; Daniel Webster to John Tyler (c April 1841), ibid at 56. 7 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 95; Maurice Baxter, One and Inseparable: Daniel Webster and the Union (Cambridge: Harvard University Press, 1984) at 324. 300

Notes for Pages 102–105 8 Henry Stephen Fox to Viscount Palmerston (7 April 1841), Doc 93, in Bourne, above note 4 at 149. 9 Henry Stephen Fox to Viscount Palmerston (14 April 1841), Doc 96, in ibid at 151. 10 Ibid. 11 Daniel Webster to Henry Stephen Fox (24 April 1841) in “The Trial of Alexander McLeod,” above note 1 at 363–64. 12 Ibid. 13 Henry Stephen Fox to Viscount Palmerston (28 April 1841), Doc 100, in Bourne, above note 4 at 160. 14 Henry Stephen Fox to Viscount Palmerston (12 May 1841), Doc 102, ibid at 162. 15 Ibid. 16 Fox had called this claim “untenable.” Henry Stephen Fox to Viscount Palmerston (28 March 1841), Doc 91, ibid at 144–45. He would later claim that Webster made it because to do otherwise would cause his administration to contradict the position on the Caroline raiders taken by its predecessors. Henry Stephen Fox to Lord Aberdeen (20 November 1841), Doc 162, ibid at 240. It may also be that Webster was simply insisting on protocol. In February 1841, Palmerston told the House of Commons that it considered the Caroline raid “under the circumstances, to have been a proceeding perfectly justifiable by the consideration of the necessity of defending her Majesty’s territory.” He also said this view had been communicated to the American government. Viscount Palmerston, Mr. M’Leod—United States (9 February 1841) UK, HC Debates, vol 56, cols 456–59. Ambassador Stevenson reported to Forsyth that this speech removed all doubt that the capture and destruction of the Caroline was approved by the British government (and indeed, one of the officers involved — Lt McCormick — was being awarded a pension for his service). But Stevenson protested that he had not been officially informed, as Palmerston suggested. Andrew Stevenson to John Forsyth (3 March 1841), Doc 1541, in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 612–13. 17 Daniel Webster to Henry Stephen Fox (24 April 1841) in “The Trial of Alexander McLeod,” above note 1 at 365 and 369 [emphasis added]. 18 Ibid at 369–70. 19 People v McLeod, 25 Wend 483 (NY Sup Ct 1841). 20 Stevens, above note 7 at 111. McLeod’s lawyers had been convinced the international law issues would decide McLeod’s case. See Sir George Arthur to John Russell (17 March 1841), Doc 1843, in Sir George Arthur, The Arthur Papers, vol 3 (Toronto: University of Toronto Press, 1957) at 389. 21 Henry Stephen Fox to Lord Aberdeen (13 October 1841), Doc 157, in Bourne, above note 4 at 235. Judge Gridley’s Charge to the Jury, in “The Trial of Alexander McLeod,” above note 1 at 342. 22 Daniel Webster to Henry Stephen Fox (20 September 1841) in Shewmaker, above note 5 at 144. 301

Notes for Pages 105–107 23 Stevens, above note 7 at 122; Baxter, above note 7 at 326. 24 Daniel Webster to Spencer [no first name given] (21 September 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 6–7. 25 Stevens, above note 7 at 122. 26 Daniel Tallmadge, Review of the Opinion of Judge Cowen of the Supreme Court of the State of New York in the Case of Alexander McLeod (Washington: Thomas Allen, 1841). Webster even reportedly used state funds to reproduce and distribute the opinion. See Anonymous, “Comment: The Supreme Court of New York, and Mr. Webster, in the McLeod Question” (May 1842) 10 United States Magazine and Democratic Review 487 at 488. The latter article, however, disputed the Tallmadge view, and sided with Cowen. The key issue was whether the Caroline raid could be considered an “imperfect war.” See Part III in this book. Still, other worthies supported Tallmadge, including the noted international jurist James Kent, state supreme court judges, leading lawyers and politicians, and a Harvard law professor. See John Noyes, “The Caroline: International Law Limits on Resort to Force” in John Noyes, Lara Dickinson, & Mark Janis, eds, International Law Stories (New York: Foundation Press, 2007) at 297–88. See also Stevens, above note 7 at 122. 27 Henry Stephen Fox to Lord Aberdeen (26 November 1841) and attached “Review of the Opinion of Judge Cowen” by Charles Edwards, and Charles Edwards to Henry Stephen Fox (19 November 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 24 at 114 and 129. 28 Henry Stephen Fox to Lord Aberdeen (23 September 1841), Doc 149, in Bourne, above note 4 at 227. 29 Henry Stephen Fox to Viscount Palmerston (28 July 1841), Doc 68, ibid at 180. 30 Viscount Palmerston to Henry Stephen Fox (18 August 1841), Doc 123, ibid at 181. 31 Henry Stephen Fox to Daniel Webster (5 September 1841) in Shewmaker, above note 5 at 115. 32 Daniel Webster to Henry Stephen Fox (20 September 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 24 at 6. 33 Henry Stephen Fox to Richard Coxe (no date); Richard Coxe to Henry Stephen Fox (21 September 1841); Henry Stephen Fox to Lord Aberdeen (25 September 1841); Legal Opinion of Messrs James Kent and Charles Edwards (24 September 1841); Charles Edwards to Henry Stephen Fox (24 September 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 24 at 7–10. 34 Speech of Mr Bowne of New York in the House of Representatives (13 July 1841), ibid at 68. 35 Stevens, above note 7 at 120; “The McLeod Case. Speech of Mr. Adams, of Mass. On the resolution calling for information in relation to the McLeod case, September 1, 1841” Niles’ National Register (25 September 1841) at 60. 36 Ibid at 62. 37 Stevens, above note 7 at 123–24. 302

Notes for Pages 107–111 38 Henry Stephen Fox to Viscount Palmerston (12 September 1841), Doc 148, in Bourne, above note 4 at 226. 39 United States —Mr. M’Leod (26 August 1841), UK, HC, Parliamentary Debates, vol 59, cols 263–70. On the political contest that led to Palmerston’s ouster, see Jasper Ridley, Lord Palmerston (New York: Dutton, 1970) at 274 et seq. 40 Viscount Palmerston to Andrew Stevenson (27 August 1841) in Correspondence between Viscount Palmerston & Mr. Stevenson relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River on the Night of the 29th of December, 1837, by a Detachment of Her Majesty’s Forces from Upper Canada (1841), UKNA, FO 881/12 at 56, online: https://archive.org/ details/cihm_46050 [Palmerston Correspondence]. 41 Ibid at 57. 42 Sir George Arthur to John Russell (25 January 1841), Doc 68, in Bourne, above note 4 at 119. 43 Francis Bond Head to Henry Stephen Fox (8 January 1838) in Palmerston Correspondence, above note 40 at 9. See also Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Arthur, above note 20 at 456 et seq (disputing a civil war in Canada). 44 Head to Fox, above note 43 at 9. See also Viscount Palmerston to Andrew Stevenson (27 August 1841) in Palmerston Correspondence, above note 40, at 58. 45 Head to Fox, above note 43 at 10–11. 46 Palmerston to Stevenson, above note 44 at 60. 47 Ibid at 62. 48 Ibid. 49 Ibid at 58. 50 Ibid at 57. 51 Ibid at 58. 52 Andrew Stevenson to Viscount Palmerston (31 August 1841) in Palmerston Correspondence, above note 40 at 89. 53 Viscount Palmerston to Andrew Stevenson (2 September 1841) in Palmerston Correspondence, above note 40 at 94; Andrew Stevenson to Viscount Palmerston (2 September 1841), Doc 1561, in Manning, above note 16 at 671.

Chapter 14: Resolution 1 Daniel Webster to Lord Ashburton (6 August 1842), Doc 214, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 346–47. 2 Castle Freeman, Jr, “Vita: Edward Everett” (November–December 2013) 116:2 Harvard Magazine, online: http://harvardmagazine.com/2013/11/vita-edwardeverett. 3 Maurice Baxter, One and Inseparable: Daniel Webster and the Union (Cambridge: Harvard University Press, 1984) at 319. 303

Notes for Pages 111–113 4 Ibid at 320. Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 126. 5 Ibid at 130. 6 Lord Aberdeen to Henry Stephen Fox (18 September 1841). Fox expressed relief at these clear instructions, noting that he had often been left to his own devices in the urgency of the moment in dealing with the crisis, and he would be more than pleased to receive further instructions. Henry Stephen Fox to Lord Aberdeen (12 October 1841). Both in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 1 and 15–16. 7 Henry Stephen Fox to Lord Aberdeen (28 September 1841), Doc 150, in Bourne, above note 1 at 229. 8 Henry Stephen Fox to Viscount Palmerston (12 September 1841), Doc 148, ibid at 226. Henry Stephen Fox to Lord Aberdeen (23 September 1841), Doc 149, ibid at 227. 9 Henry Stephen Fox to Lord Aberdeen (28 November 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 6 at 130–31. 10 Henry Stephen Fox to Lord Aberdeen (12 October 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, ibid at 17. 11 Ibid. 12 Henry Stephen Fox to Lord Aberdeen (1 October 1841), Doc 151, in Bourne, above note 1 at 230. 13 Henry Stephen Fox to John Quincy Adams (5 October 1841), UKNA, FO 97/17 at 562. 14 Henry Stephen Fox to Lord Aberdeen (12 October 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 6 at 17. 15 Prime Minister Peel to Queen Victoria (28 October 1841) in Arthur Benson & Viscount Esher, eds, The Letters of Queen Victoria, vol 1 (London: John Murray, 1908) at 356. 16 William Henry Seward to Daniel Webster (22 September 1841) in Kenneth Shewmaker, ed, The Papers of Daniel Webster, Diplomatic Papers, Volume 1, 1841–1843 (Hanover: University Press of New England, 1983) at 148. 17 Prime Minister Peel to Lord Aberdeen, Lord Haddington, & Lord Stanley (17 October 1841) in Charles Stuart Parker, ed, Sir Robert Peel, vol 3 (London: John Murray, 1899) at 387–88. 18 Kenneth Bourne, Britain and the Balance of Power in North America, 1815– 1908 (London: Longmans, 1967) at 94–95. 19 Peel to Queen Victoria, above note 15 at 356. 20 Stevens, above note 4 at 132. 21 Lord Aberdeen to Henry Stephen Fox (18 November 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 6 at 22. 22 William Henry Seward to Daniel Webster (17 September 1841) and William Henry Seward to Daniel Webster (22 September 1841), Doc 1275, n 1, in William Manning, Diplomatic Correspondence of the United States: Canadian 304

Notes for Pages 113–116

23 24 25

26 27 28

29 30 31 32 33 34 35 36 37 38 39 40

41

Relations, 1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 153. Admiralty Letter (author illegible) (8 February 1841), UKNA, CO 42/482 at 28. Daniel Webster to Henry Stephen Fox (25 September 1841), Doc 1275, in Manning, above note 22 at 151. Henry Stephen Fox to Daniel Webster (30 November 1841), Doc 1570, ibid at 685. William Henry Seward to Daniel Webster (22 September 1841), Doc 1275, n 1, in Manning, above note 22 at 153. Stevens, above note 4 at 125. This event provoked a flurry of correspondence from Daniel Webster to New York Governor Seward and federal officials on the frontier, seeking repression of the attacks. See Daniel Webster to Winfield Scott (23 September 1841); Daniel Webster to William Henry Seward (23 September 1841); Daniel Webster to Joshua Spencer (24 September 1841), William Henry Seward to Daniel Webster (22 September 1841), Doc 1275, n 1, in ibid at 154. See also Henry Stephen Fox to William Sandom (28 December 1841), UKNA, FO 97/17 at 572 (providing intelligence of these anticipated attacks). See also Edwin Guillet, The Lives and Times of the Patriots (Toronto: Ontario Publishing Co, 1963) at 176. Seward to Webster, above note 25 at 153–54; Stevens, above note 4 at 133. Alastair Watt, “The Case of Alexander McLeod” (1931) 12:2 Canadian Historical Review 145 at 156–57. “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841), in Gould’s Stenographic Reporter, vol 2 (Washington: 1841). Andrew Drew to WH Draper (14 September 1841), reproduced in [Down, Northern Ireland] Newry Telegraph (9 November 1841) at 4. “The Trial of Alexander McLeod,” above note 28 at 358. Thomas Moore to Lord Aberdeen (15 October 1841), Doc 158, in Bourne, above note 1 at 235. Watt, above note 27 at 159. Henry Stephen Fox to Sir Richard Jackson (25 October 1841), UKNA, FO 97/17 at 569. Stevens, above note 4 at 155. See also Henry Stephen Fox to Lord Aberdeen (28 October 1841), Doc 160, in Bourne, above note 1 at 238. Henry Stephen Fox to Lord Aberdeen (13 October 1841) in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, above note 6 at 19. Fox to Lord Aberdeen, above note 34 at 236. Aberdeen to Fox, above note 21 at 21. John Tyler, First Annual Message (7 December 1841), online: www.presidency. ucsb.edu/ws/?pid=29483. Ibid. Beckles Willson, Friendly Relations: A Narrative of Britain’s Ministers and Ambassadors to America (1791–1930) (Freeport, NY: Books for Libraries Press, 1969) at 149. Lord Aberdeen to Lord Ashburton (8 February 1842), Doc 164, in Bourne, above note 1 at 241. 305

Notes for Pages 116–122 42 Stevens, above note 4 at 159; Willson, above note 40 at 150; Baxter, above note 3 at 336–37. 43 Alasdair Roberts, America’s First Great Depression (Ithaca: Cornell University Press, 2012) at 125. 44 Ibid at 126. 45 Daniel Brown, Palmerston: A Biography (New Haven: Yale University Press, 2012) at 267. 46 Stevens, above note 4 at 161. 47 Daniel Webster to Lord Ashburton (6 August 1842), Doc 214, in Bourne, above note 1 at 347; Doc 1298, in Manning, above note 22 at 187. 48 Act of August 29, 1842, 5 Stat 539, c 257. 49 Lord Aberdeen to Lord Ashburton (8 February 1842), Doc 164, in Bourne, above note 1 at 246. 50 Lord Ashburton to Lord Aberdeen (25 April 1842) in Manning, above note 22, at 704. 51 Lord Ashburton to Lord Aberdeen (28 July 1842), Doc 204, in Bourne, above note 1 at 331. 52 Daniel Webster to Lord Ashburton (27 July 1842), Doc 205, in Bourne, above note 1 at 332. 53 Howard Jones & Donald Allen Rakestraw, Prologue to Manifest Destiny: Anglo-​ America Relations in the 1840s (Wilmington, DE: Scholarly Resources, 1997) at 144. 54 Lord Ashburton to Lord Aberdeen, above note 51 at 331. 55 Lord Ashburton to Daniel Webster (28 July 1842), Doc 206, in Bourne, above note 1 at 332–33. 56 Ibid at 333. 57 Ibid at 334. 58 Ibid. 59 Ibid at 335. Ashburton’s apology (of sorts) would infuriate the former lieutenant-​ governor of Upper Canada, Francis Bond Head. Head consumes several pages in his Canadian memoirs excoriating this “capitulation.” Francis Bond Head, The Emigrant (New York: Harper & Brothers, 1847) at 161–63. 60 Daniel Webster to Lord Ashburton (6 August 1842), Doc 214, in Bourne, above note 1 at 346–47; Doc 1298, in Manning, above note 22 at 187. 61 Roberts, above note 43 at 126. 62 Carrol Francis, A Good and Wise Measure: The Search for the Canadian-​ American Boundary, 1783–1842 (Toronto: University of Toronto Press, 2001) at 288 et seq. 63 Brown, above note 45 at 268. See also Head, above note 59 at 299. 64 Roberts, above note 43 at 127. 65 Howard Jones, Crucible of Power: A History of American Foreign Relations to 1913, 2d ed (Lanham, MD: Rowman & Littlefield, 2009) at 146; Head, above note 59 at 305–6. 66 Message of President Tyler (11 August 1842), H Exec Doc 2, 27 Cong, 3d Sess.

306

Notes for Pages 125–131

Chapter 15: The Law of the Day 1 “Trial of Alexander McLeod,” enclosure attached to Henry Stephen Fox to Viscount Palmerston (16 June 1841), UKNA, FO 414/8 at 155. 2 See, for example, Island of Palmas Case (Netherlands v USA) (1928) 2 UN Reports of International Arbitral Awards 829. 3 Bradley Miller, “The Law of Nations in the Borderlands: Sovereignty and Self-​Defence in the Rebellion Period, 1837–1842” in G Blaine Baker & Donald Fyson, Essays in the History of Canadian Law: Quebec and the Canadas (Toronto: Osgoode Society for Canadian Legal History, 2013) 235 at 253. 4 James Green, The International Court of Justice and Self-Defence in International Law (Oxford: Hart, 2009) at 71. 5 Scott Andrew Keefer, “‘An Obstacle, though Not a Barrier’: The Role of International Law in Security Planning during the Pax Britannica” (2013) 35:5 International History Review 1031 at 1032. 6 Scott Andrew Keefer, The Law of Nations and Britain’s Quest for Naval Security (London: Palgrave Macmillan, 2016) at 65–68. 7 Above note 1. 8 Charles Fenwick, “The Sources of International Law” (1918) 25:6 Michigan Law Review 393 at 396.

Chapter 16: The Idea of War 1 Carl von Clausewitz, On War, translated by JJ Graham (Chatham, UK: Wordsworth Editions, 1997) at 6. 2 Ibid. 3 Ibid at 22. 4 Ibid at 5. 5 Ibid at 6. 6 Thucydides, The Peloponnesian War, translated by Martin Hammond (Oxford: Oxford World’s Classics, 2009). 7 Heinrich Lammasch, “Unjustifiable War and the Means to Avoid It” (1916) 10 American Journal of International Law 689 at 689. See also Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 2. Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 4. 8 Stephen Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005) at 36. Williams Vernon Harris, War and Imperialism in Republican Rome, 327–70 B.C. (Oxford: Oxford University Press, 1985) at 163 et seq. 9 Neff, above note 8 at 37. 10 Ibid at 37–38. See also GA Harrer, “Cicero on Peace and War” (1918) 14:1 Classical Journal 26 at 27. 11 Ibid at 33. See also Harris, above note 8 at 253–54 (questioning whether Roman wars were subjectively defensive). 307

Notes for Pages 131–134 12 See, for example, Public Committee v The Government of Israel (2006), HCJ 769/02 at para 61 (Israeli High Court). 13 M Tullius Cicero, The Orations of Marcus Tullius Cicero, translated by CD Yonge (London: George Bell & Sons, 1891) ch 4, online: www.perseus.tufts.edu/ hopper/text?doc=Perseus:text:1999.02.0020:text=Mil.:chapter=4&highlight= silent. See Roger Manning, War and Peace in the Western Political Imagination (New York: Bloomsbury, 2016) at 335, n 21 (arguing that Cicero’s maxim “refers to the chaos of civil conflict, and is not applicable to war with external enemies”). 14 Neff, above note 8 at 10 and 32. 15 Ibid at 10. 16 Ibid at 46. 17 Thomas Aquinas, On Law, Morality and Politics, 2d ed by William P Baumgarth & Richard J Regan (Indianapolis: Hackett Publishing Company, 2002) at ST II-II, Question 40, A.1, resp. 18 Ibid. See discussion in Brownlie, above note 7 at 6. 19 Neff, above note 8 at 52. 20 Ibid at 58. 21 Ibid at 64–65. 22 Ibid at 60–61. 23 Ibid at 62. 24 Ibid at 86–87. See also Thomas Rutherforth, Institutes of Natural Law, 3d ed (Philadelphia: William Young, 1799) vol 2 at 446 and 451. 25 William Ballis, The Legal Position of War: Changes in Its Practice and Theory from Plato to Vattel (New York: Garland, 1973) at 111 and 115. See also Rutherforth, above note 24 at 488–89. 26 Neff, above note 8 at 97. 27 See, for example, Samuel Rachel (1628–1691), discussed in Ballis, above note 25 at 123. 28 See, for example, Johann Wolfgang Textor (1638–1701), discussed in ibid at 127–29. 29 Ibid at 121. 30 See, for example, Georg Friedrich von Martens (1756–1821), discussed in ibid at 143. 31 Neff, above note 8 at 128. 32 See Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Toronto: Simon & Schuster, 2017) at 43, for a remarkable distillation of war declarations — manifestos — from the 1500s to the Second World War, categorizing the justifications offered. During that period, defensive war was cited in 69 percent of the manifestos. It also became more important with time as a justification. Oona Hathaway et al, “War Manifestos” (2018) 85 University of Chicago Law Review [forthcoming]. Prepublication version available at SSRN: https://ssrn.com/abstract=3037538. For an archive of these data, see Oona A Hathaway et al, War Manifestos Database (2017), online: http://documents.law.yale.edu/manifestos. 308

Notes for Pages 134–136 33 Hugo Grotius, De Jure Belli ac Pacis Libri Tres (Oxford: Clarendon Press, 1925) at 786. 34 Christian Wolff (1679–1754), discussed in Ballis, above note 25 at 147. 35 Grotius, above note 33 at 195.

Chapter 17: Imperfect Wars 1

Daniel Tallmadge, Review of the Opinion of Judge Cowen of the Supreme Court of the State of New York in the Case of Alexander McLeod (Washington: Thomas Allen, 1841) at 28 [emphasis in original]. 2 See Thomas Rutherforth, Institutes of Natural Law, 3d ed (Philadelphia: William Young, 1799) vol 2 at 475 (limiting “public war” to contests between civil societies, represented by their executive bodies). See discussion in David Armitage, Civil Wars: A History in Ideas (New York: Alfred A Knopf, 2017). 3 Stephen Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005) at 18–19. GA Harrer, “Cicero on Peace and War” (1918) 14:1 Classical Journal 26 at 37. 4 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, 1688 ed (Oxford: Clarendon Press; London: Humphrey Milford, 1934) vol 2 at 1300. 5 JJ Burlamaqui, Principles of Natural and Politic Law (Oxford: Printed by W. Green, for the proprietors, Military Classics Office, 1817) at 833; Rutherforth, above note 2 at 485 and 489. 6 Neff, above note 3 at 119. 7 Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 15. 8 Alberico Gentili, De Iure Belli Libri Tres (Oxford: Clarendon Press, 1933) vol 2 at 268. 9 See, for example, Hugo Grotius, De Jure Belli ac Pacis Libri Tres (Oxford: Clarendon Press, 1925) at 172. This view was widely shared among other jurists of the period. See also Alexandrov, above note 7 at 5. It is also replicated in sources often relied upon by American jurists in the nineteenth century such as Rutherforth, above note 2 at 96. 10 Gentili, above note 8 at 58–59 (citing Bodin: “War is just for those for whom it is necessary, and arms are righteous for those who have no hope left except in arms”). 11 Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (Oxford: Clarendon Press, 1934) vol 2 at 493. 12 Grotius, above note 9 at 173. See also Pufendorf, above note 4 at 264 (“nature at time allows the recourse to violence, when we cannot in any other way preserve our safety because of the aggression of another”); Wolff, above note 11 at 368 (speaking of the necessity of self-defence being caused by a “present force which is to be resisted at once”); Rutherforth, above note 2 at 490–91 (“it is only the apparent design of doing an injury, and not the power of doing one, that makes defence by force lawful,” and a war is not justified “if no injury had yet been done or attempted”). See also Neff, above note 3 at 128–29. 309

Notes for Pages 136–138 13 14 15 16 17 18 19

20 21 22 23 24 25 26 27 28 29

Grotius, above note 9 at 173. Gentili, above note 8 at 58 and 60. Pufendorf, above note 4 at 276. Grotius, above note 9 at 173–75. Rutherforth, above note 2, volumes 1 & 2. The Marianna Flora, 24 US 1 at 42 and 46 (1826). Vincent Chetail, “Vattel and the American Dream: An Inquiry into the Reception of The Law of Nations in the United States” in Pierre-Marie Dupuy & Vincent Chetail, eds, The Roots of International Law (Leiden, NL: Brill, 2014) 251. Authur Nussbaum, A Concise History of the Law of Nations (New York: MacMillan, 1962) at 156–57. See also Chetail, above note 19 at 255. Nussbaum, above note 20 at 158; Chetail, above note 19 at 284–85. Brown v United States, 12 US (8 Cranch) 110 at 140 (1814). Nussbaum, above note 20 at 160–61. Chetail, above note 19 at 267. Robert von Mohl, Die Geschicte und Literatur der Staatswissenschaften (1855), cited in Nussbaum, above note 20 at 161. Ibid. TJ Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000) at 182. Chetail, above note 19 at 267–71. See UK, HC, Parliamentary Debates, vol 40, col 627 (29 January 1838) (Mr Hume) Vattel was an author very much quoted now-a-days, and Vattel had said that the people had a right to be well-governed, and at as cheap a rate as possible; and that if the people were deprived of these their inalienable rights by force or fraud, they would be justified in using every means in their power to recover them.

A search of the historic Hansard shows thirty-six instances of Vattel being mentioned in parliamentary debates in the 1830s and thirty instances in the 1840s. See http://hansard.millbanksystems.com. In comparison, Pufendorf (Puffendorf) was invoked nine times over the same period, and Grotius, thirty times (often in association with Vattel). 30 JAS Stephen to Backhouse (17 February 1838), Backhouse to the Queen’s Advocate, Attorney, and Solicitor-General (19 February 1838); JAS Stephen to J Backhouse (21 February 1838); JAS Stephen to J Backhouse (23 February 1838); Lord Glenelg to Sir George Arthur (22 February 1838); and Viscount Palmerston to Henry Stephen Fox (6 March 1838) in Correspondence Relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 41, 61, 62, 63, and 65 [Caroline Correspondence]. See also Scott Andrew Keefer, “‘An Obstacle, though Not a Barrier’: The Role of International Law in Security Planning during the Pax Britannica” (2013) 35:5 International History Review 1031 at 1033 (discussing the role of the British law officers in the nineteenth century). 310

Notes for Pages 138–139 31 Roderick Braithwaite, Palmerston and Africa (London: British Academic Press, 1996) at 206–8 and 287–88. 32 See, for example, Lord Palmerston, “Debate on the Russian-Ditch Loan” (16 July 1832) in George Henry Francis, Opinions and Policy of Viscount Palmerston (London: Colburn, 1852) at 206. The Speech of Viscount Palmerston in the Reply to the Motion of Lord George Bentinck (London: Effingham Wilson, 1848) (at various places throughout). In total, Palmerston mentioned Vattel six times in parliamentary debates. See http://hansard.millbanksystems.com. 33 Chetail, above note 19 at 254. 34 Ibid at 263. Vattel was the first writer among mainstream international law jurists to “treat issues of neutral rights and duties in any detail.” Neff, above note 3 at 154. In part, he could do so because he was less preoccupied with just cause than his earlier predecessors; in a war with a just cause, the idea of neutrality was more difficult to countenance. Wilhelm Grewe, The Epochs of International Law, translated by Michael Byers (New York: Walter de Gruyter, 2000) at 530. 35 Albert James Harno, Legal Education in the United States (Clark, NJ: Lawbook Exchange, 2004) at 21. 36 Nussbaum, above note 20 at 162. Chetail, above note 19 at 272. 37 Harno, above note 35 at 21. Maurice Baxter, Daniel Webster and the Supreme Court (Amherst, MA: University of Massachusetts Press, 1966) at 4; Maurice Baxter, One and Inseparable: Daniel Webster and the Union (Cambridge, MA: Harvard University Press, 1984) at 13. 38 Chetail, above note 19 at 265 et seq. 39 See “The Trial of Alexander McLeod,” Circuit Court, 5th Judicial District of the State of New York (4 October 1841) in Gould’s Stenographic Reporter, vol 2 (Washington: 1841). See also Gardner & Bradley [McLeod’s counsel] to Draper (13 February 1841), Doc 1766, in Sir George Arthur, The Arthur Papers, vol 3 (Toronto: University of Toronto Press, 1957) at 333. “Trial of Alexander McLeod,” enclosure attached to Henry Stephen Fox to Viscount Palmerston; Henry Stephen Fox to Viscount Palmerston (16 June 1841), UKNA, FO 414/8 at 155. 40 Chetail, above note 19 at 264. 41 Speech of Mr Ingersoll of Pennsylvania, in the House of Representatives (24 June 1841) in Further Papers Relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 32. 42 Extract from the National Intelligencer [Washington], attached to Henry Stephen Fox to Viscount Palmerston (16 June 1841), UKNA, FO 414/8 at 175, 181, and 233 (exchange between Senator Buchanan & Senator Rives). 43 See, for example, extract from the National Intelligencer [Washington], ibid at 236 (exchange between Senator Buchanan & Senator Rives). Indeed, the very congressman who had criticized Webster for relying on Vattel in the McLeod dispute (rather than proper English sources) was himself accused by colleagues of arguing points using Vattel. Speech of Mr Cushing in the House of Representatives (24 June 1841) in Further Papers Relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 46 and 49. In the 311

Notes for Pages 139–142

44

45 46 47 48 49 50 51 52 53 54

Senate too, senators maintaining different positions could cite Vattel. See, for example, extract from the National Intelligencer [Washington], above in this note at 224 (Senator Huntington). Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed by Joseph Chitty (London: Sweet and Maxwell, 1834) at 291, book 3, ch I, § 3. Ibid at 293. Ibid. Ibid at 302, book 3, ch III, § 28. Ibid at 302, book 3, ch III, § 26. Ibid at 306, book 3, ch III, § 39. Ibid at 309–10, book 3, ch III, § 44. Ibid at 307, book 3, ch III, § 42. Ibid at 153–54, book 2, ch IV, § 49. Ibid at 154, book 2, ch IV, § 50. Ibid at 313 & 314, book 3, ch III, § 50.

Chapter 18: Self-Preservation at Copenhagen 1 UK, HC, Parliamentary Debates, vol 10, col 283 (3 February 1808). 2 Reproduced in F Boutros, Principles of the Law of Nations (Calcutta: Ostell and Lepage, 1845) at 190. 3 These events are described in FL Sommer, A Description of Denmark and a Narrative of the Siege, Bombardment, and Capture of Copenhagen, 2d ed (Colchester: I Marsden, 1807). 4 Andrew Drew, Memoir of the Services of the Late Captain Sir John Phillimore (June 1850) at 278, Winchester, UK, Hampshire Archives and Local Studies (Doc 115M88/F13/1); William R O’Byrne, A Naval Biographical Dictionary (London: John Murray, 1849) at 306. 5 Archibald Alison, History of Europe from the Commencement of the French Revolution to the Restoration of the Bourbons (Paris: Baudry’s European Library, 1841) vol 6 at 227. 6 That, at least, is the conclusion of Ian Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963) at 310. 7 See discussion in Carl Kulsrud, “The Seizure of the Danish Fleet, 1807” (1938) 32:2 American Journal of International Law 280 at 282. See also UK, HL, Parliamentary Debates, vol 10, col 651 (18 February 1808); HL, Parliamentary Debates, vol 10, col 33 (21 January 1808); HL, Parliamentary Debates, vol 10, col 875 (3 March 1808); HC, Parliamentary Debates, vol 10, col 205 (1 February 1808); HL, Parliamentary Debates, vol 10, col 361 (8 February 1808); HL, Parliamentary Debates, vol 10, col 370 (8 February 1808); HC, Parliamentary Debates, vol 39, col 541 (4 December 1837); HC, Parliamentary Debates, vol 10, col 74 (21 January 1808). 8 See, for example, UK, HC, Parliamentary Debates, vol 10, col 205 (1 February 1808). 312

Notes for Pages 142–144 9 UK, HL, Parliamentary Debates, vol 10, col 479 (15 February 1808) (Lord Grenville): [I]t was extremely important not to confound the law of retaliation with the law of self-preservation. The latter was paramount to all laws, and might justify even such a horrible act as the attack upon Copenhagen, provided the case was clearly and satisfactorily made out. The right of retaliation on the other hand, could only with justice be exercised upon an enemy, and could not be extended to the detriment of a neutral power. 10 “Declaration of the King of Great Britain, Relative to the War with Denmark, dated Sept 25 1807,” UK, HC, Parliamentary Debates, vol 10, col 115 (26 January 1808). 11 UK, HC, Parliamentary Debates, vol 10, col 283 (3 February 1808). See also, HL, Parliamentary Debates (8 February 1808), vol 10, cols 348–49 (Marquis Wellesley): The great maxims of the law of nations were founded on the law of nature; and the law of security or self-preservation was, among these, the most important and sacred. It was a law equally to be obeyed by individuals and communities. The king, placed at the head of the great society subsisting on these islands, had no duty paramount to the protection of his people, and by the servants of the crown this imperious duty had been, on this momentous occasion, vigilantly and ably discharged. 12 Boutros, above note 2 at 192, seemingly paraphrasing Sharpe, Ponsonby, and Lord Erskine. 13 Ibid. 14 Edinburgh Review (April 1843) at 328. 15 UK, HL, Parliamentary Debates, vol 10, col 370 (8 February 1808) (Lord Hawkesbury): “The first principle which the law of nations inculcated was self-preservation, combined with benevolence and good-will to our fellow-creatures. Self-preservation, which was the strongest of all principles, justified an individual in causing the death of another, and that not only upon general principles, but even by the municipal law.” 16 UK, HL, Parliamentary Debates, vol 11, col 304 (17 May 1808). 17 UK, HL, Parliamentary Debates, vol 10, col 376 (8 February 1808) (Earl Grey). 18 Report of Herbert Jenner (31 October 1829) in Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) vol 2 at 231. 19 Herbert Jenner to Viscount Palmerston (22 November 1832) (involving Portuguese seizure of British property in violation of treaty); and report of John Dodson (6 February 1835 and September 1836) (involving Spanish violation of treaty rights of access to its ports by British shipping) in McNair, ibid at 231– 32. Report of John Dodson (31 December 1845) in Clive Parry, ed, Law Officers’ Opinions to the Foreign Office, 1793–1860 (Westmead, UK: Gregg International, 313

Notes for Pages 144–148 1970) vol 48 at 217 (involving violation of British national passport rights in Uruguay, exonerated because of a state of siege). 20 Report of Herbert Jenner (9 April 1834) in Parry, ibid, vol 38 at 124. 21 William John Duane, The Law of Nations Investigated in a Popular Manner Addressed to the Farmers of the United States (Philadelphia: William Duane, 1809) at 28.

Chapter 19: Neutrality and its Limits 1 The Queen’s Advocate, Attorney, and Solicitor-General to Viscount Palmerston (21 February 1838), Doc 29, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 27 & 28. 2 People v Alexander McLeod, 25 Wendell 483 at 577 (NY Sup Ct 1841). 3 See, especially, Daniel Tallmadge, Review of the Opinion of Judge Cowen of the Supreme Court of the State of New York in the Case of Alexander McLeod (Washington: Thomas Allen, 1841). A lower court judge in New York, Tallmadge argued that lawful war reached all sorts of conflicts involving states. Even if the attack on the Caroline itself was hostile and improper, it was still sanctioned by the British authorities for reasons other than plunder, and therefore a lawful war for which McLeod could not be held individually culpable. See also “Review of the Opinion of Judge Cowen” by Mr Edwards in Further Papers Relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 116, 117, 118, 119, and 122 (relying heavily on Vattel). 4 Speech of Mr Barnard of New York in the US House of Representatives (31 August 1841). Speech of Mr Cushing in the US House of Representatives (24 June 1841). John Quincy Adams also disagreed with Judge Cowen, urging a state of war existed between Britain and the Caroline. Speech of Mr Adams of Massachusetts (4 September 1841). See also Speech of Mr Everett of Vermont (3 September 1841), arriving at a similar conclusion and (selectively) citing Vattel. All found in Further Papers relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 84, 89, 97, 110, 111, and 113. 5 On this precise point, see “Review of the Opinion of Judge Cowen” by Mr Edwards in ibid at 122 and 125–26. See also extract from the National Intelligencer [Washington], attached to Henry Stephen Fox to Viscount Palmerston (16 June 1841), UKNA, FO 414/8 at 181, 192, and 233 (Senator Rives, relying on Vattel; Senator Choate, also relying on Vattel, among others; Senator Buchanan, relying on Vattel, among others). 6 Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed by Joseph Chitty (London: Sweet and Maxwell, 1834) at 332, book 3, ch IV, § 103. 7 “Seizure of the Caroline” [London] Examiner (21 March 1841) at 179. 8 Vattel, above note 6 at 141, book 2, ch I, § 18. 9 Ibid at 343, book 3, ch VII, § 132. 314

Notes for Pages 148–151 10 James Kent, Commentaries on American Law, 2d ed (New York: Halsted, 1832) vol 1 at 120. 11 John Tyler, First Annual Message to the Senate and House of Representatives of the United States (7 December 1841), online: www.presidency.ucsb.edu/ ws/?pid=29483. 12 Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea & Blanchard, 1836). This book was regularly updated through eight editions until 1866. See Peter Macalister-Smith & Joachim Schwietzke, “Bibliography of the Textbooks and Comprehensive Treatises on Positive International Law in the 19th Century” (2001) 3 Journal of History of International Law 75 at 105. 13 Henry Wheaton, “Affaire de Mac-Leod, considérée sous le point de vue du droit des gens” (1842) 9:1 Revue étrangère et française de législation, de jurisprudence et d’économie politique 81 at 91–92. See also speech of Mr Everett of Vermont (3 September 1841) to the US House of Representatives, arriving at a similar conclusion: Further Papers relating to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 881/13 at 98, 110, 111, and 113. 14 Francis Bond Head to Henry Stephen Fox (8 January 1838) in Correspondence between Viscount Palmerston & Mr. Stevenson Relative to the Seizure and Destruction of the Steam Boat “Caroline,” in the Niagara River on the Night of the 29th of December 1837, by a Detachment of Her Majesty’s Forces from Upper Canada (1841), UKNA, FO 881/12 at 13, online: https://archive.org/ details/cihm_46050 [Palmerston Correspondence]. See also Francis Bond Head, The Emigrant (New York: Harper & Brothers, 1847) at 154–55. 15 Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Sir George Arthur, The Arthur Papers, vol 1 (Toronto: University of Toronto Press, 1957) at 456. 16 Sir George Arthur to Lord Sydenham (1 February 1841), Doc 72, in Bourne, above note 1 at 123–24. See also Francis Bond Head to Henry Stephen Fox (30 January 1838), Doc 24, ibid at 20–21 (making similar observations and also using self-defence and self-preservation interchangeably); Henry Stephen Fox to John Forsyth (6 February 1838) in Correspondence relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 80 (speaking of “the necessity of self-defence and self-preservation”) [Caroline Correspondence]. 17 Henry Stephen Fox to Consul in New York (19 January 1838), UKNA, FO 97/17 at 106. 18 Henry Stephen Fox to John Forsyth (29 December 1840) in Papers Related to the Arrest of Mr McLeod in the State of New York, UKNA, FO 414 at 9–10. 19 [First name illegible] Robinson to Viscount Castlereagh (23 June 1813) in Clive Parry, ed, Law Officers’ Opinions to the Foreign Office, 1793–1860 (Westmead, UK: Gregg International Publishers, 1970) vol 88 at 287. 20 [First name illegible] Robinson to Viscount Canning (20 July 1826) in Parry, above note 19, vol 80 at 352. 21 John Campbell, Life of John, Lord Campbell, 2d ed by Mrs Mary Scarlett Campbell Hardcastle (London: John Murray, 1881) vol 2 at 118–19. 315

Notes for Pages 151–154 22 The Queen’s Advocate, Attorney, and Solicitor-General to Viscount Palmerston, above note 1 at 27 & 28. 23 John Dodson, John Campbell, & Robert Rolfe to Viscount Palmerston (25 March 1839) in Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) vol 2 at 228. In a later opinion dealing with the pursuit of a criminal by British soldiers across the frontier, Dodson also stated that the immediate pursuit of a “defeated and flying enemy” into neutral territory was permissible, but that standard did not apply in efforts to capture a simple delinquent. John Dodson to Viscount Palmerston (31 May 1841) in Parry, above note 19, vol 4 at 124. 24 Lord Glenelg to Sir George Arthur (23 February 1838) in Caroline Correspondence, above note 16 at 9–10. 25 Robert Phillimore, A Letter to the Right Hon. Lord Ashburton Suggested by the Questions of International Law Raised in the Message of the American President (London: J Hatchard, 1842) [Phillimore, Letter]. 26 Robert Phillimore, Commentaries upon International Law (Philadelphia: T and JW Johnson, 1854) [Phillimore, Commentaries]. 27 Phillimore, Letter, above note 25 at 19. 28 Ibid at 21. 29 Ibid at 24. 30 Ibid at 23. 31 Ibid at 23–24. 32 Ibid at 24–25 & 26–27. 33 Ibid at 25. 34 Ibid. 35 Ibid at 31. 36 Vattel, above note 6 at 344–45, book 3, ch VII, § 133. This passage is cited in French in Phillimore, Letter, above note 25 at 31–32. Mackenzie’s son-in-law and first biographer, Charles Lindsey, also pointed to this precise passage in concluding, “[u]nder all the circumstances, the right of the British authorities to destroy the Caroline, even by the invasion of American territory, cannot be successfully disputed”: The Life and Times of W.M. Lyon Mackenzie (Toronto: PR Randall, 1862) vol 2 at 151. See also Vattel, above note 6 at 448, book 4, ch 4, § 43 (arguing that pursuit of an attacker into a neighbouring territory was lawful self-defence “provided we commit no hostilities against innocent persons”). This passage was also cited by Phillimore, Letter, above note 25 at 36. 37 Phillimore, Commentaries, above note 26 at 189. 38 Robert Phillimore, Commentaries upon International Law (Philadelphia: T & JW Johnson, 1857) vol 3 at 89 et seq. 39 “The McLeod Case. Speech of Mr. Adams, of Mass. On the resolution calling for information in relation to the McLeod case, September 1, 1841” Niles’ National Register (25 September 1841) at 60.

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Notes for Pages 155–158

Chapter 20: Self-Defence and the First Seminole War, 1817–1818 1 Secretary of State Adams to Don Luis de Onis (23 July 1818), American State Papers, Senate, 15th Cong, 2d Sess, Foreign Relations, vol 4 at 498 [State Papers, Senate, Foreign Relations]. Adams further argued that, in any event, the territory of Florida was not neutral because the “Indian savages” with whom the United States was at war “possess territorial right.” 2 Deborah Rosen, Border Law: The First Seminole War and American Nationhood (Cambridge: Harvard University Press, 2015) at 12. 3 Ibid at 19. 4 Ibid at 20. 5 General Jackson to the governor of Pensacola (23 April 1816) in Message from the President of the United States in Relation to our Affairs with Spain (23 December 1818) at 54. 6 Ibid at 55. 7 Governor Zuniga to General Jackson (26 May 1818) in ibid at 56–57. 8 Rosen, above note 2 at 22. Joe Knetsch, Florida’s Seminole Wars: 1817–1858 (Charleston, SC: Arcadia Press, 2003). 9 Rosen, above note 2 at 22. 10 President Monroe, “Message from the President of the United States to Congress, relative to the Capture of Amelia Island” (13 January 1818) in State Papers and Publick Documents of the United States, 3d ed (Boston: Tomas B Wait, 1819) vol 40 at 397. 11 Ibid. 12 John Quincy Adams to Spanish ambassador Chevalier Don Luis de Onis (16 January 1818), State Papers, Senate, Foreign Relations, above note 1 at 464. 13 Rosen, above note 2 at 25–26. 14 Ibid at 29. 15 Ibid at 32. Andrew Jackson to Secretary of War Calhoun (8 April 1818), American State Papers, Senate, 15th Cong, 2d Sess, Military Affairs, vol 1 at 699. 16 Rosen, above note 2 at 32. 17 Spanish Foreign Minister Don José Pizarro to US ambassador to Spain George Irving (26 July 1818), American State Papers, Senate, Foreign Relations, above note 1 at 518. 18 Rosen, above note 2 at 35. 19 Adams to Don Luis de Onis, above note 1 at 498. 20 Secretary of State Adams to George W Erving (28 November 1818), American State Papers, Senate, Foreign Relations, above note 1 at 541. 21 Ibid. 22 Debate, in the House of Representatives of the United States, on the Seminole War in January and February 1819 (Washington: Printed at the office of the National Intelligencer [Washington], 1819) [Debate], Mr Smyth at 102; Mr Strother at 318. Indeed, extreme necessity authorized even the temporary

317

Notes for Pages 158–162

23 24 25 26 27 28 29

30 31 32

33

34 35

seizure of a neutral town “with a view to cover ourselves from the enemy, or to prevent the execution of his designs against that town, when the sovereign is not able to defend it.” Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed by Joseph Chitty (London: Sweet and Maxwell, 1834) at 142, book 3, ch IV, § 122, cited by Mr Johnson of Virginia in Debate (ibid at 42). See also Mr Smyth at 110, Mr Barbour at 151, and Mr Hopkinson at 287 (debating whether extreme necessity existed to justify the occupation of some Spanish forts). Other members pointed to Vattel in urging that Spanish ineptitude entitled the United States to exercise its “absolute right to security from depredation on her frontier”: ibid at 321 (Mr Strother). Ibid at 102. James Monroe, Second Annual Message (16 November 1818), online: www.presidency.ucsb.edu/ws/?pid=29460. Rosen, above note 2 at 38–40. Alvin Duckett, John Forsyth: Political Tactician (Athens, GA: University of Georgia Press, 1962) at 196–98. John Forsyth to Powhatan Ellis (10 December 1836), US, HR Exec Doc No 105, 24th Cong, 2d Sess, vol 3 at 48–49. Robert Remini, Daniel Webster (New York: WW Norton, 1997) at 499. “Discussions of the Senate upon the case of the ‘Caroline’” (9 January 1838) in Correspondence Relative to the Seizure and Destruction of the Steam Boat “Caroline,” Foreign Office, January 1842, UKNA, FO 881/13 at 9–10 [Caroline Correspondence]. Extract from the National Intelligencer [Washington], attached to Henry Stephen Fox to Viscount Palmerston (16 June 1841), UKNA, FO 414/8 at 238. “Speeches of Messrs. Rhett and Menefee in the House of Representatives upon the case of the ‘Caroline’” (8 January 1838), ibid at 12. “Report of the Select Committee of the House of Assembly of Upper Canada” (30 April 1838) in UK, House of Commons Papers, “Copies of Extracts of Correspondence relative to the Affairs of Canada” (6 June 1839) at 16. Ibid at 17. Later British jurists would also link the Caroline and the US conduct in Florida. See John Westlake, International Law, 2d ed (Cambridge, MA: Cambridge University Press, 1910) at 314. And American author Hannis Taylor viewed US conduct in Mexico in 1836 as constituting self-preservation grounded in self-defence, one that included pursuing insurgent attackers into the territory of the state from which they came: see A Treatise on International Public Law (Chicago: Callaghan, 1901) at 405. Henry Stephen Fox to John Forsyth (29 December 1840) in Papers Related to the Arrest of Mr. McLeod in the State of New York, UKNA, FO 414 at 9. Viscount Palmerston to Andrew Stevenson (19 September 1839), Doc 1484, in William Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860, vol 3 (Washington: Carnegie Endowment for International Peace, 1943) at 525. The British law officers were also aware of the

318

Notes for Pages 162–164

36 37 38

39

40 41 42

“doctrine laid down by the Government of the United States, in justification of its . . . proceedings in Florida in 1818,” in an opinion concluding that the entry of forces into neutral territory was permissible where in immediate pursuit of a defeated and fleeing enemy, not a regular criminal. John Dodson to Viscount Palmerston (31 May 1841) in Clive Parry, ed, Law Officers’ Opinions to the Foreign Office, 1793–1860 (Westmead, UK: Gregg International Publishers, 1970) vol 4 at 124. Francis Bond Head would cite the American conduct in 1818 at length in his memoirs justifying the Caroline raid. See Francis Bond Head, The Emigrant (New York: Harper & Brothers, 1847) at 155. UK, HL, Parliamentary Debates, vol 56, col 365 (8 February 1841) (Earl Mountcashell). Trial of Alexander McLeod, attached to Henry Stephen Fox to Viscount Palmerston (16 June 1841), UKNA, FO 414/8 at 151. “Seizure of the Caroline” [London] Examiner (21 March 1841) at 180. See also “The Controversy on the Seizure of the ‘Caroline’” [London] Examiner (28 March 1841) at 194 & 195. Henry Wheaton, “Affaire de Mac-Leod, considérée sous le point de vue du droit des gens” (1849) 9:1 Revue étrangère et française de législation, de jurisprudence et d’économie politique 81 at 94. [London] Examiner (21 March 1841) at 180. [London] Morning Chronicle (22 March 1841). [London] Examiner (28 March 1841) at 195.

Chapter 21: The Merits of the Case 1 Robert Phillimore, A Letter to the Right Hon. Lord Ashburton Suggested by the Questions of International Law Raised in the Message of the American President (London: J Hatchard, 1842) at 24–25. 2 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 166. 3 See, for example, Robert Phillimore, Commentaries upon International Law, 3d ed (London: Butterworths, 1879) vol 1 at 315; William Edward Hall, A Treatise on International Law, 3d ed (Oxford: Clarendon Press, 1890) at 267– 68; Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, 2d rev ed (Boston: Little, Brown, 1947) vol 1 at 239–40; CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 451 at 463. 4 Timothy Kearley, “Raising the Caroline” (1999) 17:2 Wisconsin International Law Journal 325 at 330 (noting, probably correctly, that Webster was not trying to create a general rule for the use of force by a state in self-defence within its own territory).

319

Notes for Pages 165–169 5 John Noyes, “The Caroline: International Law Limits on Resort to Force,” in John Noyes, Lara Dickinson, & Mark Janis, eds, International Law Stories (New York: Foundation Press, 2007) at 276. 6 There is a scholarly debate about whether the Webster doctrine encompassed imminence. See Murray Colin Alder, The Inherent Right of Self-Defence in International Law (London: Springer, 2013) at 36. I believe both Webster’s language and its antecedents incorporated such a concept. But the facts of the Caroline did not, a point to which I return in Part V. 7 For similar points, see Mohammed Karoubi, Just or Unjust War? (Burlington, VT: Ashgate, 2004) at 123–24 and 133. 8 Charles Fenwick, “The Sources of International Law” (1918) 25:6 Michigan Law Review 393 at 396. 9 Some modern scholars believe that Webster’s formula was not customary international law at the time coined. See, for example, James Green, “Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law concerning Self-Defence” (2006) 14 Cardozo Journal of International and Comparative Law 429 at 440. This is probably true, but, given that the accepted sources of international law in the period included ready reliance on the seventeenth- and eighteenth-century jurists, it is irrelevant to its legitimacy. 10 Yoram Dinstein, War, Aggression and Self-Defence, 4th ed (Cambridge, MA: Cambridge University Press, 2005) at 209.

Chapter 22: Freedom to War 1 William Hall, A Treatise on International Law, 4th ed (Oxford: Clarendon Press, 1895) at 64–65. 2 Witness, for example, the transition in subsequent editions in James Kent’s famous “Commentaries.” In Kent’s Commentaries on American Law (New York: O Halstead, 1826) vol 1 at 2, he urged “the most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force, and dignity, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, from which the science of morality is derived.” However, a revision of Kent’s work edited by JT Addy in 1866 asserted “the law of nature (whatever that may be)” could not “be considered as at the source or foundation of International Law, or as exercising any absolute necessary influence upon international relations.” Instead, “the sole source of this law, the foundation from which it flows, whether in its customary, conventional, or judicial-customary shape, is the consent of nations.” Kent’s Commentaries on International Law, revised ed by JT Abdy (London: Stevens and Sons, 1866) at 6–7. 3 Stephen Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005) at 186 et seq. 320

Notes for Pages 170–172 4 Ibid at 171 et seq. 5 Ibid at 191. 6 Quincy Wright, “The Test of Aggression in the Italo-Ethiopian War” (1936) 30 American Journal of International Law 45 at 55. 7 Neff, above note 3 at 198. 8 Ibid at 200. 9 Hall, above note 1 at 64–65. See also JL Brierly, The Law of Nations, 6th ed by Humphrey Waldock (Oxford: Clarendon Press, 1963) at 398. But note that some current scholars argue that this vision of the nineteenth century is too damning, and that international lawyers were not nearly this indifferent. See Agatha Verdebout, “The Contemporary Discourse on the Use of Force in the Nineteenth Century: A Diachronic and Critical Analysis” (2014) 1:2 Journal on the Use of Force and International Law 223. 10 Neff, above note 3 at 136–37. 11 Thomas Hobbes, Leviathan, revised ed by AP Martinich & Brian Battiste (Toronto: Broadview Editions, 2011) at 126. 12 Neff, above note 3 at 133. 13 Ibid at 169. Some jurists of the period emphatically pointed to Hobbes, arguing that the “history of mankind is an almost uninterrupted narration of a state of war.” Kent’s Commentary on International Law, 2d ed by JT Abdy (Cambridge: Deighton, Bell, 1878) at 143. 14 See, for example, ibid; Robert Phillimore, Commentaries upon International Law, 3d ed (London: Butterworths, 1879); and Henry Wheaton, Elements of International Law: With a Sketch of History (London: B Fellowes, 1836). Indeed, anglophone writers generally persisted with a greater acceptance of natural law doctrines than their continental counterparts. Wilhelm Grewe, The Epochs of International Law, translated by Michael Byers (New York: Walter de Gruyter, 2000) at 506. 15 Neff, above note 3 at 176. CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 455 at 457. 16 Neff, above note 3 at 215. 17 Albert Hindmarsh, Force in Peace: Force Short of War in International Relations (Cambridge, MA: Harvard University Press, 1933) at 87. 18 Neff, above note 3 at 216. 19 Ibid at 216–17. 20 Ibid at 225 et seq. 21 Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 17. 22 Neff, above note 3 at 223–25. 23 Memorandum on the Argument of the United States in its Relation to International Law, UKNA, FO 881/6478X at 3 and 6. See also Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 41 (describing it as possessing a “tincture of natural law doctrine”).

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Notes for Pages 172–173 24 Some sense of this is conveyed by James Green, “Self-Preservation” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, March 2009). See also Martin Roghoff & Edward Collins, Jr, “The Caroline Incident and the Development of International Law” (1990) 16:3 Brooklyn Journal of International Law 493 at 501 et seq. 25 See discussion at Brownlie, above note 23 at 41 and 47. See also Brierly, above note 9 at 404. 26 Coleman Phillipson, Wheaton’s Elements of International Law, 5th ed (London: Stevens and Sons, 1916) at 87. 27 Phillimore, above note 14 at 2. For similar views, see William Edward Hall, A Treatise on International Law, 3d ed (Oxford: Clarendon Press, 1890) at 265; Daniel Gardner, A Treatise on International Law (Troy, NY: Jacobs, 1844) at 204. 28 Wheaton, above note 14 at 108. 29 James Reddie, Inquiries in International Law (Edinburgh: William Blackwood & Sons, 1842) at 190. 30 HW Halleck, International Law or Rules Regulating Intercourse of States in Peace and War (San Francisco: HH Bancroft, 1861) at 91–93 [Halleck, International Law]; HW Halleck, Elements of International Law and Laws of War (Philadelphia: JB Lippincott, 1866) at 59–60 [Halleck, Elements]; Phillimore, above note 14 at 312; Phillipson, above note 26 at 88; George Davis, The Elements of International Law, 4th ed (New York: Harper and Brothers, 1916) at 93; Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, 2d ed (Boston: Little, Brown, 1947) vol 1 at 237; Pasquale Fiore, Nouveau Droit International Public (Paris: Durand, 1885) at 391. 31 Hall, above note 1 at 265–66. 32 See, for example, Halleck, Elements, above note 30 at 53 and 147, and Gardner, above note 27 at 205. 33 Waldock, above note 15 at 461–62. 34 Hall, above note 1 at 269; John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894) at 119–20 [Westlake, Chapters]; John Westlake, International Law, 2d ed (Cambridge: Cambridge University Press, 1910) at 315 [Westlake, International Law]. See also Phillipson, above note 26 at 89; Frederick Edwin Smith Birkenhead, International Law, 6th ed (London: JM Dent, 1927) at 79–80. 35 See, for example, Opinion of Henry James, WV Harcourt, & J Parker Deane to the Earl of Grenville (14 February 1874) in Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) vol 2 at 236. 36 Halleck, Elements, above note 30 at 53. 37 McNair, above note 35 at 226, n 1. See also Waldock, above note 15 at 462. 38 Travers Twiss, The Law of Nations Considered as Independent Political Communities (Oxford: Clarendon Press, 1884) at 184–85. AG Heffter, Le Droit International de l’Europe, 4th ed (Paris: Cotillon, 1883) at 72. 39 Brownlie, above note 23 at 43. 40 Neff, above note 3 at 241. 41 Waldock, above note 15 at 462. 322

Notes for Pages 173–174 42 See, for example, Halleck, International Law, above note 30 at 522; Henry Wheaton, above note 14 at 19; Gardner, above note 27 at 205. 43 Robert Phillimore, A Letter to the Right Hon. Lord Ashburton Suggested by the Questions of International Law Raised in the Message of the American President (London: Hatchard, 1842). 44 Scott Andrew Keefer, “‘An Obstacle, though Not a Barrier’: The Role of International Law in Security Planning during the Pax Britannica” (2013) 35:5 International History Review 1031 at 1032. Phillimore was Queen’s Advocate from 1862 to 1866 and Admiralty Advocate from 1855 to 1862. Clive Parry, ed, A British Digest of International Law (London: Stevens and Sons, 1965) vol 7 at xv. 45 Peter Macalister-Smith & Joachim Schwietzke, “Bibliography of the Textbooks and Comprehensive Treatises on Positive International Law in the 19th Century” (2001) 3 Journal of History of International Law 75 at 80; Grewe, above note 14 at 510; Martii Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2001) at 34. 46 See, for example, Robert Phillimore, Commentaries upon International Law (Philadelphia: T & JW Johnson, 1854) vol 1; Commentaries upon International Law, 2d ed (London: Butterworths, 1871) vol 1; Phillimore, above note 14. The fourth volume of this third edition appeared in 1889. See Macalister-Smith & Schwietzke, above note 45 at 110. 47 See, for example, Hall, above note 1 at 266; Halleck, International Law, above note 30 at 522. Hall, in turn, is cited by Westlake, International Law, above note 34 at 313; George Wilson & George Tucker, International Law (New York: Silver, Burdett, 1910). Along with Hall, Phillimore is also cited as one of several sources by John Bassett Moore, A Digest of International Law (Washington: Government Printing Office, 1906) vol 2 at 411. See Appendix 1. Moore’s Digest is a case summary volume, including selective extracts from the Caroline diplomatic dispute. Its distillation of the Caroline was then the single most commonly cited source for the Caroline in the early twentieth century, including (probably most influentially) by the International Military Tribunal at Nuremberg, as discussed in a later chapter. 48 Phillimore, above note 14 at 314–15. 49 Hall above note 1 at 266. 50 Davis, above note 30 at 99. 51 Hall above note l at 266. See also Kent’s Commentary on International Law, above note 2 at 168 (reproducing Webster’s formulation of “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”). So too did: Halleck, International Law, above note 30 at 521; Westlake, Chapters, above note 34 at 115–17; TJ Lawrence, The Principles of International Law, 3d ed (Boston: DC Heath, 1900) at 502; Wilson & Tucker, above note 47; Phillipson, above note 26 at 89; Davis, above note 30 at 101 (describing this act as available where the territorial state was “unable or unwilling” to prevent the marauding); Westlake, International Law, above note 34 at 313; Birkenhead, above note 34 at 81. The latter three sources also viewed 323

Notes for Pages 174–176

52

53 54 55 56 57 58

59 60 61

62

63

the US action at Amelia Island in Florida in 1818 as of the same character as the Caroline. Westlake, International Law, above note 34 at 314; Davis, above note 30 at 101. Similarly, American author Hannis Taylor, A Treatise on International Public Law (Chicago: Callaghan, 1901) at 405–6, reproduced Webster’s formula, but also viewed US conduct in Mexico in 1836 as constituting self-preservation grounded in self-defence, a concept that included pursuing insurgent attackers into the territory of the state from which they came. Memorandum on the Argument of the United States in its relation to International Law, above note 23 at 6. See, for example, A Verdross, “Règles générales du droit international de la paix” (1929) 30 Collected Courses of the Hague Academy of International Law 271 at 486. Halleck, Elements, above note 30 at 59–60. Halleck, International Law, above note 30 at 96. Halleck, Elements, above note 30 at 60. Hall, above note 1 at 266, n 1. Birkenhead, above note 34 at 80. See Lawrence, above note 51 at 503 (calling the violation of sovereignty in these circumstances “technical offences”). Taylor, above note 51 at 406. See also a similar point made earlier in 1844 by Gardner, above note 27 at 206 (“Unless the injury is one affecting the national sovereignty and independence, war ought not to be resorted to, as it could not be called a war of self-defence”). See also Lawrence, above note 51 at 501 (“The act is illegal; but if the necessity is sufficiently imperative, a wise neutral will condone it on the tender of proper explanations”). Hyde, above note 30 at 238. Philip Quincy Wright, The Enforcement of International Law through Municipal Law in the United States (Urbana, IL: University of Illinois, 1916) at 27. The version in Kent’s Commentary on International Law, above note 2 at 168, is more accurate, noting that the British regretted the violation of US territory and their failure to explain early in the dispute the rationale for it, and the US response welcomed this exhibition of good feeling and conciliation. Halleck’s other works also are more precise on this point. Halleck, International Law, above note 30 at 521 (noting that Webster “admitted that the necessity of self-defence might justify hostility in the territory of a neutral power”). See also Taylor, above note 51 at 688; and John Norton Pomeroy, Lectures on International Law in Time of Peace (Boston: Houghton, Mifflin, 1886) at 91. Even Phillimore made this mistake, perhaps setting the error in motion. See, for example, Phillimore, above note 14 at 315, and in the first edition, above note 46 at 189; Hall, above note 1 at 267; Westlake, Chapters, above note 34 at 116; Westlake, International Law, above note 34 at 688 (all seemingly believing that Navy Island was “within the American frontier” or “territories” or “soil”); Lawrence, above note 51 at 501 (believing the Canada/US border ran through Navy Island); and Charles Fenwick, International Law (London: Century, 1924) (same). Those jurists who correctly reported this fact sometimes believed that the British intended to capture the Caroline, and expected to find her moored in 324

Notes for Pages 176–182 Canadian waters. Kent’s Commentary on International Law, above note 2 at 167; Halleck, International Law, above note 30 at 520; Phillipson, above note 26 at 89; Theodore Dwight Woolsey, Introduction to the Study of International Law, Designed as an Aid in Teaching, and in Historical Studies, 2d ed (New York: Charles Scribner, 1865) at 271. This was an understandable assertion, given Lord Ashburton’s claims in 1842. It is not, however, well supported by the record. That record tends to suggest the raiders knew full well they would find the Caroline in the United States, and that their objective was destruction, not capture. See Part I. 64 Lassa Oppenheim, International Law: A Treatise, 3d ed by Ronald Roxburgh (London: Longmans, Green, 1920) at 218. 65 Lassa Oppenheim, International Law: A Treatise (London: Longmans, Green, 1905) at 180. See also Charles Cheney Hyde, International Law (Boston: Little, Brown and Company, 1922) vol 1 at 108–9 (describing the peril confronted by the British as a “threatened attack on British territory” and then concluding there was an “instant necessity, requiring immediate action”).

Chapter 23: Banning War 1 Robert Y Jennings, “The Caroline and McLeod Cases” (1938) 32 American Journal of International Law 82 at 82, 91, & 92. 2 Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 26. 3 Ibid. 4 Margaret MacMillan, Paris 1919: Six Months That Changed the World (New York: Random House, 2003) at 83. 5 Ibid at 85. 6 Michael Howard, War and the Liberal Conscience (New Brunswick, NJ: Rutgers University Press, 1978) at 53. 7 US Department of State, Office of the Historian, The Alabama Claims, 1862– 1872, online: https://history.state.gov/milestones/1861-1865/alabama. 8 Fur Seal Arbitration, Proceedings of the Tribunal of Arbitration (United States v Great Britain) (Washington: Government Printing Office, 1895) vol 9 at 153. 9 HG Wells, The War That Will End War (London: Palmer, 1914). 10 See discussion in Cian O’Driscoll, The Renegotiation of the Just War Tradition and the Right to War in the Twenty-First Century (New York: Palgrave MacMillan, 2008) at 23. CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 455 at 469. 11 MacMillan, above note 4 at 85. 12 Alexandrov, above note 2 at 31. 13 Stephen Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005) at 290. 14 See, in particular, League of Nations, Covenant of the League of Nations, 28 April 1919, arts 12–16 [Covenant]. 325

Notes for Pages 182–185 15 Covenant, ibid, art 10. 16 Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 65. 17 UK, HC, Parliamentary Debates, vol 210, col 2105 (24 November 1927) (Austen Chamberlain). 18 See, for example, Convention for the Definition of Aggression, London, 3 July 1933, art 2 (a treaty with nine Eastern European and Middle Eastern state parties). 19 See also discussion in Brownlie, above note 16 at 247–48. Waldock, above note 10 at 469. 20 Brownlie, above note 16 at 62 et seq. Nigel White, Advanced Introduction to International Conflict and Security Law (Cheltenham, UK: Edward Elgar, 2014) at 27. 21 Waldock, above note 10 at 472. 22 League of Nations, Official Journal, 4th Year, No 11 (November 1923) at 1276 et seq and 1412 et seq. Neff, above note 13 at 298. 23 League of Nations, Official Journal, 5th Year, No 4 (April 1924) at 524. See Waldock, above note 10 at 475–76, for a critique of this position. 24 Neff, above note 13 at 300. See also JL Brierly, The Law of Nations, 6th ed by Humphrey Waldock (Oxford: Clarendon Press, 1963) at 412. 25 Alexandrov, above note 2 at 32–36. 26 Coleman Phillipson, Wheaton’s Elements of International Law, 5th ed (London: Stevens and Sons, 1916). 27 Coleman Phillipson, International Law and the Great War (London: T Fisher Unwin, 1915) at 27, 31, & 32. 28 Alexandrov, above note 2 at 45. 29 Ibid at 47. 30 The remarkable story of the Pact is detailed in magisterial fashion in Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Toronto: Simon & Schuster, 2017), especially 106–30. 31 Alexandrov, above note 2 at 52. 32 James Brierly, “Some Implications of the Pact of Paris” (1929) 10 British Yearbook of International Law 208 at 208 [Brierly, “Implications”]. 33 See, for example, the debate in the US Senate, summarized in Alexandrov, above note 2 at 60–61. 34 Secretary of State Henry Stimson, “The Pact of Paris: Three Years of Development” (October 1932) 11:1 Foreign Affairs (Special Supplement) i at viii. See also Neff, above note 13 at 295. 35 Quincy Wright, “The Meaning of the Pact of Paris” (1933) 27 American Journal of International Law 39 at 39. 36 Ibid at 55. Waldock, above note 10 at 474. Brierly, above note 24 at 410. See discussion in Murray Colin Alder, The Inherent Right of Self-Defence in International Law (Dordrecht, NL: Springer, 2013) at 55. 37 See Albert Hindmarsh, Force in Peace: Force Short of War in International Relations (Cambridge, MA: Harvard University Press, 1933) at 123 (“coercive measures short of war have always been regarded as ‘pacific’ in character 326

Notes for Pages 185–188

38 39 40

41

42 43

44 45 46

47 48 49

and purpose”) and 127. Brownlie, above note 16 at 222. Randall Lesaffer, “Kellogg-Briand Pact (1928)” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, October 2010) at para 11, online: http://bit.ly/2kbF3SR. Ibid at paras 17 & 18. Alexandrov, above note 2 at 54 et seq. Ibid. For the views of other state delegations, see Papers Relating to the Foreign Relations of the United States, 1928 (Washington: Government Printing Office, 1928) vol 1 at 44 and 106–7 (Germany); 66 and 114 (Britain); 75 and 96 (Japan); 107 (France); 109 (Ireland); 114 (Australia); 116 (South Africa); 119 (Poland); 122 (Czechoslovakia); 177 (Romania); and 193 (Yugoslavia) [Papers, 1928]. A British statement in the preparatory material preserving an ability to defend “certain regions” within the British Empire still invoked self-defence in respect to an “attack” — it is best seen as a nod to collective self-defence of imperial interests. See ambassador in Great Britain to the secretary of state (19 May 1928) at 68 (ibid); Brierly, “Implications,” above note 32 at 209. Secretary of state to the ambassador in France (23 April 1928) in Papers, 1928, above note 40 at 36–37. For a full discussion of the treaty’s negotiating history, see Alexandrov, above note 2 at 52 et seq; and David Hunter Miller, The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty (New York: GP Putnam’s Sons, 1928). Secretary of state to the ambassador in France (23 April 1928) in Papers, 1928, above note 40 at 36–37. Statute of the Permanent Court of International Justice (16 December 1920), art 38, online: www.worldcourts.com/pcij/eng/documents/1920.12.16_statute.htm. On this point, see Yoram Dinstein, War, Aggression and Self-Defence, 4th ed (Cambridge: Cambridge University Press, 2005) at 180. Charles Fenwick, “The Sources of International Law” (1918) 25:6 Michigan Law Review 393 at 395. See ibid on this point. The issue remains an acute one, and the modern International Court of Justice has opined that state practice giving rise to custom need not be perfectly consistent or universal. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at para 186 [Nicaragua]. Fenwick, above note 45 at 398. See Papers, 1928, above note 40, vol 1 at 44 and 106–7 (Germany); 68 (Britain); 107 (France); 122 (Czechoslovakia); 177 (Romania); and 194 (Yugoslavia). The secretary of state to certain diplomatic representatives (1 December 1929) in United States Department of State, Papers Relating to the Foreign Relations of the United States, 1929 (Washington: Government Printing Office, 1929) vol 2 at 371; reply from Litvinov to American representations on the Soviet-Chinese dispute (3 December 1929) in Jane Degras, ed, Soviet Documents on Foreign Policy, vol 2 (1925–1932) (London: Oxford University Press, 1952) at 406 & 407. 327

Notes for Pages 188–190 50 Note by Mr Dean (Foreign Office) (2 May 1940), UKNA, FO 800/899. 51 Charles Fenwick, International Law (London: Century, 1924) at 143 (citing the Caroline and asserting that self-defence depends on the gravest necessity and depends on a state that is unwilling or unable to prevent the commission of an aggressive act within the invaded state, but then discussing other cases such as Copenhagen in 1807 without much effort to reconcile the differences). 52 Ibid at 145. 53 Stimson, above note 34 at v. 54 For a recent assessment of Wright’s influence during the period, see Daniel Gorman, “International Law and the International Thought of Quincy Wright” (2017) 41 Diplomatic History 336. 55 Wright, above note 35 at 51. 56 Ibid at 44–45. 57 Ibid at 54 [emphasis in original]. 58 See, in particular, Jules Basdevant, “Efficacité des Règles générales du droit de la paix” (1936) 58 Collected Courses of the Hague Academy of International Law 533 at 541–42; James-Leslie Brierly, “Regles du droit de la paix” (1936) 58 Collected Courses of the Hague Academy of International Law 1 at 128. See also Baron Descamps, “Le droit international nouveau. L’influence de la condamnation de la guerre sur l’évolution juridique internationale” (1930) 31 Collected Courses of the Hague Academy of International Law 469 at 470 (discussing self-preservation, but citing the Caroline). See also Waldock, above note 10 at 477 (writing after the Second World War, but arguing in an article that makes frequent reference to the Caroline that in the period of the Pact, the customary right to self-defence was limited to cases where there was an “instant need to take defensive action against the imminent invasion of legal rights”); Brownlie, above note 16 at 249–50 (summarizing the inter-war approach to self-defence and the Caroline). 59 Jennings, above note 1 at 82, 91, & 92. 60 It has been cited in 141 law review articles in the LexisNexis Quicklaw US Law Review database since the early 1980s. Jennings’s description of the Caroline as the “locus classicus” in self-defence has been repeated in fifteen law review articles in the LexisNexis Quicklaw US Law Review database since the early 1990s and in numerous books (too numerous to fully list). But see, for example, DW Bowett, Self-Defence in International Law (Manchester: Manchester University Press, 1958) at 58; Dinstein, above note 44 at 274; Jean-Marc Thouvenin, “Self-Defence” in James Crawford, Alain Pellet, & Simon Olleson, eds, The Law of International Responsibility (Oxford: Oxford University Press, 2010) at 457; Jan Kittrich, The Right of Individual Self-Defense in Public International Law (Berlin: Logos Verlag Berlin, 2008) at 22; David Rodin, War and Self-Defense (Oxford: Oxford University Press, 2002) at 111; Mark Totten, First Strike: America, Terrorism and Moral Tradition (New Haven: Yale University Press) at 150 et seq; James Green, The International Court of Justice and Self-Defence in International Law (Oxford: Hart, 2009) at 67; Christian Henderson, The Persistent Advocate and the Use of Force (Farnham, UK: Ashgate, 2010) at 139. 328

Notes for Pages 190–193 61 The notion that the “natural” right to self-defence must now be part of customary law remains the view in more recent times. See Nicaragua, above note 46 at para 176.

Chapter 24: Collapse 1 League of Nations, “Observations of the Japanese Government of the Report of the Commission of Enquiry Constituted” (19 November 1932), League of Nations Official No C.775.M.366.1932.VII at 24 [Observations of the Japanese Government]. 2 Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 72. Bolivia, at war with Paraguay in the 1932 Chaco War, was in fact not a party to the Kellogg-Briand Pact. Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 76. 3 Heiko Meiertöns, The Doctrines of US Security Policy: An Evaluation under International Law (Cambridge: Cambridge University Press, 2010) at 85. For further discussion, see Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017) at 166 et seq. 4 Alexandrov, above note 2 at 72. 5 See Quincy Wright, “The Test of Aggression in the Italo-Ethiopian War” (1936) 30 American Journal of International Law 45 at 55–56. Kinga Tibori Szabó, Anticipatory Action in Self-Defence (The Hague: Asser Press, 2011) at 95. CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 451 at 478. 6 Stephen Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005) at 306. 7 Louise Young, Japan’s Total Empire: Manchuria and the Culture of Wartime Imperialism (Berkeley: University of California Press, 1999) at 30. 8 League of Nations, “Appeal by the Chinese Government, Report of the Commission of Inquiry” (1 October 1932), League of Nations Official No C.663.M.320, 1932, VII at 67–69 [Report of the Commission of Inquiry]. 9 Robert Ferrell, “The Mukden Incident: September 18–19, 1931” (1955) 27:1 Journal of Modern History 66; John Swift, “Mukden Incident” in Encyclopaedia Britannica, online: www.britannica.com/event/Mukden-Incident. 10 Young, above note 7 at 150. 11 Uchida, Minister of Foreign Affairs of Japan (25 Aug 1932), League of Nations, 3 Official Journal, Special Supplement No 111 (1933), Appendix C at 82; M Yoshizawa to the president of the Council (24 September 1931), League of Nations, Official Journal (December 1931) at 2279–80. 12 Report of the Commission of Inquiry, above note 8 at 69. 13 Young, above note 7 at 78. 14 Report of the Commission of Inquiry, above note 8 at 71. 329

Notes for Pages 193–198 15 Ferrell, above note 9 at 69. 16 Observations of the Japanese Government, above note 1 at 24. 17 Minutes by GG Fitzmaurice (26 February 1932), UKNA, FO 371/16152. See also Anthony Carty & Richard A Smith, Sir Gerald Fitzmaurice and the World Crisis of 1930–1945 (Leiden, NL: Brill, 2000), and JL Brierly, The Law of Nations, 6th ed by Humphrey Waldock (Oxford: Clarendon Press, 1963) at 406. 18 “Statement of Mr Sze,” League of Nations, Official Journal (1931), above note 11 at 2319. 19 Ibid at 2284. 20 Observations of the Japanese Government, above note 1 at 25. 21 Young, above note 7 at 126. 22 “Notification by the Japanese Government of Its Intention to Withdraw from the League of Nations” (27 March 1933), League of Nations, Official Journal (May 1933) at 657 (document marked C.211.M.103.1933.VII). 23 Young, above note 7 at 78 and 153–54. 24 Ibid at 101. 25 Ibid at 102. 26 Ibid at 154. 27 Ibid at 155. 28 “First Report of the Sub-committee of the Far-East Advisory Committee, A.78.1937.VIII” (6 October 1937), League of Nations, Official Journal Special Supplement No 177 (1937) 37 at 42. 29 Brownlie, above note 2 at 75 et seq. See also Waldock, above note 5 at 474 (calling the Pact “a constitutional instrument of the highest importance” despite its shortcomings). 30 Brownlie, above note 2 at 80 and 108. 31 Jens Iverson, “Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post Bellum” in Carsten Stahn, Jennifer Easterday, & Jens Iverson, eds, Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2014) at 98. 32 Wright, above note 5 at 55. 33 Ibid. 34 Brownlie, above note 2 at 91–92. 35 Ibid at 80.

Chapter 25: Banning FOrce 1 See Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017) at 193 et seq (tracing the implications of the Pact for the Charter). 2 For an early discussion on this point, see CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 451 at 493. For more recent discussions, see International Law Association (ILA), Draft Report on Aggression and the Use of Force (Johannesburg Conference, May 2016) 330

Notes for Page 198 at 3. Support for this strict reading of the prohibition on the use of force is found in the UN General Assembly’s influential Declaration on Principles of International Law concerning Friendly Relations and Co-operation, GA Res 2625, Annex 25, UNGAOR, 1970, Supp No 28, UN Doc A/5217 at 121. The declaration denounces “armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.” Although not itself binding, the declaration elaborates the major principles of international law in the UN Charter, particularly on use of force, dispute settlement, nonintervention in domestic affairs, self-determination, duties of cooperation and observance of obligations, and "sovereign equality." . . . it has become the international lawyer’s favorite example of an authoritative UN resolution. Oscar Schachter, “United Nations Law” (1994) 88 American Journal of International Law 1. Referring in part to this declaration, Schachter has strongly urged a strict reading of the article 2(4) prohibition. See Oscar Schachter, “The Right of States to Use Armed Force” (1984) 82 Michigan Law Review 1620. This approach is consistent with the ICJ’s ruling in Case Concerning Armed Activities on the Territory of the Congo, [2005] ICJ Rep 168 at paras 164 et seq: “The Court further affirms that acts which breach the principle of non-intervention ‘will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.’” 3 Tom Ruys, “The Meaning of ‘Force’ and the Boundaries of the Jus ad Bellum: Are ‘Minimal’ Uses of Force Excluded from UN Charter Article 2(4)?” (2014) 108 American Journal of International Law 159 at 163. See also Vaughan Lowe & Antonios Tzanakopoulos, “Humanitarian Intervention” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, May 2011) at para 13, online: http://bit.ly/2nST3pO. The travaux préparatoires of the UN Charter, however, establish clearly that the expressions "territorial integrity", "political independence", and ‘in any other manner inconsistent with the purposes of the United Nations’ were not meant as qualifications of the scope of the prohibition in Art. 2 (4) UN Charter, but rather as reinforcements of the prohibition, aimed at assuring smaller and less powerful States that the use of force, for whatever reason, was absolutely prohibited. 4 See Corfu Channel Case (Merits), [1949] ICJ Rep 4, as construed by Waldock, above note 1 at 123. See also Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 123–25; James Green, “Self-Preservation” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, March 2009) at para 12, online: http://bit.ly/2jxTGn4.

331

Notes for Pages 198–202 5 In the last decades, as Security Council paralysis continues, there has been debate about whether the Charter allows force to be used for humanitarian purposes outside of a Security Council authorization. This is a vigorously argued view producing a vast literature that seems to enjoy only minority support. A thorough examination of this issue is beyond the purview of this book, but by way of example, see discussion in Lowe & Tzanakopoulos, above note 3; Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 321; and Ryan Goodman, “Humanitarian Intervention and Pretexts for War” (2006) 100 American Journal of International Law 107. For a contrary view, see Harold Koh, “Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)” (2 October 2013) Just Security, online: www.justsecurity.org/1506/koh-syria-part2. 6 UN Charter, 1 UNTS XVI, art 39. 7 S/RES/678 (1990) (to uphold and implement the withdrawal of Iraq from Kuwait and restore international peace and security in the region); S/ RES/1973 (2011) (to “protect civilians and civilian populated areas under threat of attack”). Other examples include S/RES/794 (1992) (regarding Somalia); S/RES/816 (1993) (regarding airspace over Bosnia); S/RES/929 (1994) (regarding Rwanda); S/RES/940 (1994) (regarding Haiti); S/RES/1264 (1999) (regarding East Timor); S/RES/1386 (2001) (regarding Afghanistan, and issued after the overthrow of the Taliban); S/RES/1484 (2003) (regarding Congo). Close variants on the expression were used in S/RES/787 (1992) (regarding the arms embargo on the former Yugoslavia) and S/RES/1464 (2003) (regarding Ivory Coast). 8 This, indeed, was recognized as article 51 was drafted. Velma Hastings Cassidy, Ralph R Goodwin, & George H Dengler, eds, Foreign Relations of the United States, 1945: Volume I, Diplomatic Papers, General: The United Nations (Washington: US Government Printing Office, 1967) at 668 (per Mr Dulles), online: https://history.state.gov/historicaldocuments/frus1945v01 [Cassidy, Goodwin, & Dengler]. 9 “Minutes” (Twenty-Ninth Meeting of the United States Delegation, held in San Francisco, 4 May 1945, 9:05 am), in Cassidy, Goodwin, & Dengler, ibid at 594 (per Mr Sandifer). 10 Ibid at 592–93. 11 Ibid at 594. 12 “Inter-American Conference on War and Peace: Act of Chapultepec” (1945) 39:2 American Journal of International Law (Supplement) 108 at 110. 13 Stephen Schlesinger, Act of Creation: The Founding of the United Nations (Boulder, CO: Westview Press, 2003) at 182 et seq. For other discussions of collective security and the impetus for article 51, see Waldock, above note 2 at 497; Phillip Jessup, A Modern Law of Nations (New York: Macmillan, 1948) at 165; Alexandrov, above note 4 at 85–93. 14 United Nations Conference on International Organization, Commission III, Security Council, Doc 576 III/4/9 (25 May 1945) at 2–3. 15 Schlesinger, above note 13 at 190. 332

Notes for Pages 202–204 16 The degree to which the Charter modifies the customary international law of self-​ defence is debated, but there is a strong view that it does not. See, for example, Christopher Greenwood, “Self-Defence” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, April 2011) at para 3, online: http://bit.ly/2BWPj8I. (“Both the language and the drafting history of Art. 51 make clear that it does not create the right of self-defence but confirms that, within the limits set forth in Art. 51, the customary law right of self-defence is preserved.”) At the very least, however, the interposition of a requirement that an “armed attack” “occur” has generated considerable debate about the scope of the remaining customary right. See discussion in Alexandrov, above note 4 at 94 et seq. This matter is discussed in Part V.

Chapter 26: Remembering the Caroline 1 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 280, art 6. 2 Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 168. 3 Geirr Haarr, The German Invasion of Norway: April 1940 (Barnsley, UK: Seaforth Publishing, 2009). 4 Trial of the Major War Criminals before the International Military Tribunal: Nuremberg, 14 November 1945–1 October 1946 (Nuremberg: International Military Tribunal, 1947) vol 1 at 207. 5 Ibid. 6 Ibid at 208. 7 Ibid at 209. 8 Ibid at 218. The Caroline made a second, more passing appearance at Nuremberg: the defence counsel for two Nazi accused invoked the McLeod matter as evidence that a person could not be prosecuted for a public act done in observance of orders of their superiors. Transcript for NMT 7: Hostage Case (15 September 1947) at 2,971, online: http://nuremberg.law.harvard.edu/ transcripts/4-transcript-for-nmt-7-hostage-case. There is no indication that this argument was revisited in the proceeding, and it misstates the specifics of the McLeod dispute. At issue in 1841 was whether the court of one country — the United States — was competent to adjudicate the prosecution of a national of another state for things done as an act of that foreign state. The issue was, essentially, about the sovereign competency of one state to sit in judgment of another equally sovereign state. This issue is not engaged by an international tribunal sitting above the sovereign state and charged with adjudicating the conduct of persons who have committed violations of international law. 9 See CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 451 at 478 (“The Nuremberg Tribunal expressly affirmed that the proper limits of the right of self-defence are those stated in the Caroline”). 333

Notes for Pages 204–206

10 11 12 13

14 15

16 17

18

See also Georg Schwarzenberger, A Manual of International Law (New York: Frederick A Praeger, 1951) at 79 (citing the IMT decision, and then deploying language drawn from Webster’s formula: “[A] State may justify its action on the ground of self-defence only if it can show that there was an instant and overwhelming necessity for such action. The admission of an all-embracing right of self-defence or self-preservation would amount to a complete negation of international law”). Referring to the 1947 edition of this work, Timothy Kearley, “Raising the Caroline” (1999) 17 Wisconsin International Law Journal 325 at 339, argues that this statement was intended, by its context, to apply only to self-defence used outside a state’s own territory. I do not think this is clear, at least by the 1951 edition. But I do not think it matters. The doctrine of self-defence is, by definition, about hard power on the territory of another state. Self-defence serves as an exception to sovereignty, and as an exception to the prohibition in the UN Charter against use of force against the “territorial integrity and political independence” of another state. None of these interests are offended if a state repels an attacker on its own territory. But, nevertheless, the Webster formula is bound to be met anyway. Hard power used by a state in self-defence against an attacker exclusively on its own territory will, by definition, be aligned with necessity (is a state expected to negotiate an armistice with an invader before responding with force?), immediacy (the attacker is already on the state’s territory), and proportionality (all and any force against the attacker on the defending state’s own territory means force used against an invading army and therefore is automatically tied to repulsion of the attack). See, for example, DW Bowett, Self-Defense in International Law (Manchester: Manchester University Press, 1958) at 58; Kearley, above note 9. Phillip Jessup, A Modern Law of Nations (New York: Macmillan, 1948) at 164. Waldock, above note 9 at 462, 463–64, and 478. Rosalyn Higgins, The Development of International Law by the Political Organs of the United Nations (JSD Thesis, Yale University Faculty of Law, 1962) at 338 [published by Oxford: Oxford University Press, 1963 at 198]. JL Brierly, The Law of Nations, 6th ed by Humphrey Waldock (Oxford: Clarendon Press, 1963) at 405. The Caroline was discussed in the context of self-preservation. See Lassa Oppenheim, International Law: A Treatise, 8th ed by Hersch Lauterpacht (New York: D MacKay, 1955) vol 1 at 300. Robert Jennings & Arthur Watts, eds, Oppenheim’s International Law: Volume 1, Peace, 9th ed (London: Longman, 1992) at 422. See, for example, Jean-Marc Thouvenin, “Self-Defence,” in James Crawford, Alain Pellet, & Simon Olleson, eds, The Law of International Responsibility (Oxford: Oxford University Press, 2010) at 457. See also Yoram Dinstein, War, Aggression and Self-Defence, 4th ed (Cambridge: Cambridge University Press, 2005) at 247 (describing and disputing a position taken by the UN International Law Commission contesting the meaning of the Caroline). “Caroline” appears in the same paragraph as “self-defense” in 581 law review articles since the early 1980s in the LexisNexis Quicklaw US Law Review 334

Notes for Page 206

19

20 21

22 23

database. It is now not possible to talk about self-defence in international law without discussing the Caroline. See, for example, Elizabeth Wilmshurst, “Principles of International Law on the Use of Force by States in Self-Defence” (London: Royal Institute of International Affairs, 2005), online: www.chathamhouse. org/publications/papers/view/108106. This British effort to consolidate standards on self-defence invokes the Caroline repeatedly throughout. Among the doubters, see James Green, “Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law concerning Self-Defence” (2006) 14 Cardozo Journal of International and Comparative Law 429 at 437 and 450 (arguing that contemporary standards and the Caroline are not synonymous, but also acknowledging that the Caroline’s influence is “difficult to deny” and noting that it “is consistently referred to by international scholars today as embodying the customary law on self-defense”); Kearley, above note 9 at 326 (calling the transformation of the Caroline for its original context as “unfortunate,” but acknowledging the impact of Webster’s formula). The Caroline’s harshest critique may be Maria Benvenuta Occelli, “Sinking the Caroline: Why the Caroline Doctrine’s Restrictions on Self-Defence Should Not Be Regarded as Customary International Law” (2003) 2 San Diego International Law Journal 467 (arguing that the Caroline was not and did not form customary law and should be treated as mere history). This critique is, however, a normative rather than an empirical view, given the overwhelming significance accorded the Caroline today. It also understates the degree to which Webster’s statement reflected the prevailing view among eighteenth- and early nineteenth-century jurists discussing self-​ defence (distinguished from defensive wars), and the extent to which natural law reasoning still legitimated claims to legality. See Part III. Charlotte Gray, International Law and the Use of Force, 3d ed (Oxford University Press, 2008) at 149. Michael Byers, “Terrorism, the Use of Force and International Law after 11 September” (2002) 51 International and Comparative Law Quarterly 401 at 406. Such claims are frequent. See, for example, Donald Rothwell, “Anticipatory Self-Defence in the Age of International Terrorism” (2005) 24:2 University of Queensland Law Journal 337 (calling the Caroline the “classic statement of self-defence” that has “survived for nearly two centuries”). Dinstein, above note 17 at 176, n 9 (“the customary international law of self-defence is often viewed as ‘best-expressed’ in D. Webster’s formula in the Caroline incident”). Anthony Clark Arend & Robert Beck, International Law and the Use of Force (London: Routledge, 1993) at 18 (calling the Caroline the “most celebrated case that dealt with the conditions for permissible self-defense”). Malcolm Shaw, International Law, 5th ed (Cambridge: Cambridge University Press, 2003) at 1023 (“The traditional definition of the right of self-defence in customary international law occurs in the Caroline case”). Dinstein, above note 17 at 249. See also ibid at 247. James Green, The International Court of Justice and Self-Defence in International Law (Oxford: Hart, 2009) at 68. 335

Notes for Pages 206–213 24 Daniel Bethlehem, “Not by Any Other Name: A Response to Jack Goldsmith on Obama’s Imminence” Lawfare (7 April 2016), online: www.lawfareblog. com/not-any-other-name-response-jack-goldsmith-obamas-imminence. 25 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at paras 176, 194, and 237; Legality of the Threat of Use of Nuclear Weapons, [1996] ICJ Rep 226 at para 41; Oil Platforms, [2003] ICJ Rep 161 at para 43; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), [2005] ICJ Rep 168 at para 147. See also Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 40 and 149. (The Caroline’s “formulation of necessity and proportionality has come to represent the position under the United Nations Charter system.”) 26 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Oral Statements (18 April 2005); Oil Platforms (Islamic Republic of Iran v United States of America), Memorial of Iran (8 June 1993), Oral Statements (26 February 2003), Reply and Counter-Claim of Iran (10 March 1999), Rejoinder of the United States (23 March 2001); Legality of Use of Force (Serbia and Montenegro v Portugal), Oral Statements (10 May 1999); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Memorial of Nicaragua (30 April 1985). The McLeod aspect of the Caroline dispute was separately raised in Border and Transborder Armed Actions (Nicaragua v Costa Rica), Memorial of Nicaragua (10 August 1987). These documents are archived on www.icj-cij.org. 27 Gray, above note 20 at 114–15. 28 Ibid at 117. 29 Murray Colin Alder, The Inherent Right of Self-Defence in International Law (Dordrecht, NL: Springer, 2013) at 73.

Chapter 27: Trigger 1 Robert Jennings & Arthur Watts, Oppenheim’s International Law: Volume 1, Peace, 9th ed (London: Longman, 1992) at 422. 2 See discussion in Jens David Ohlin & Larry May, Necessity in International Law (Oxford: Oxford University Press, 2016) at 55 et seq. 3 See John Noyes, “The Caroline: International Law Limits on Resort to Force” in John Noyes, Lara Dickinson, & Mark Janis, eds, International Law Stories (New York: Foundation Press, 2007) at 264 (noting that the Caroline rule “has, over time, been interpreted in different ways”). 4 See discussion in Murray Colin Alder, The Inherent Right of Self-Defence in International Law (Dordrecht, NL: Springer, 2013) at 20. 5 See discussion in Jutta Brunnée, “The Meaning of Armed Conflict and the Jus ad Bellum” in Mary Ellen O’Connell, ed, What Is War? An Investigation in the Wake of 9/11 (Leiden: Brill Martinus Nijhoff, 2012) 31. Article 51’s concept of “armed attack” does not expressly preclude violence by non-state actors against a state triggering a right to self-defence. See, for example, Major 336

Notes for Page 213 Darren C Huskisson, “The Air Bridge Denial Program and the Shootdown of Civil Aircraft under International Law” (2005) 56 Air Force Law Review 109 at 144 (“The concept of an armed attack was left deliberately open to the interpretation of Member States and UN Organs, and the wording is broad enough to include the acts of non-State actors as ‘armed attacks’”). See also Carsten Stahn, “‘Nicaragua Is Dead, Long Live Nicaragua’ — The Right to Self-Defence under Art 51” in Christian Walter et al, Terrorism as a Challenge for National and International Law: Security versus Liberty (Berlin: Springer, 2003) 827 at 830. See also discussion in International Law Association (ILA), Draft Report on Aggression and the Use of Force (ILA Conference, Johannesburg, May 2016) at 11. This assessment is affirmed by the post-9/11 reaction. Given the enormous scale and effect of the terrorist strikes on 11 September 2001, and the fact that they were so evidently directed against the territory of the United States, the international community quickly embraced the view that self-defence against the terrorist perpetrators was warranted, despite their non-state nature. The UN Security Council, for instance, invoked the right to self-defence in condemning the terrorist acts; see S/RES/1368 (2001) and S/RES/1373 (2001). For its part, the North Atlantic Treaty Organization (NATO) declared that the 9/11 acts satisfied the requirements of an “armed attack” under article 5 of the North Atlantic Treaty, triggering a collective response from NATO. NATO, Press Release, “Invocation of Article 5 Confirmed” (2 October 2001). The Organization of American States arrived at a similar conclusion, invoking article 3 of the Inter-American Treaty of Reciprocal Assistance. See OAS, Consultation of Ministers of Foreign Affairs, 24th Mtg, Terrorist Threat to the Americas, OR OEA/Ser.F/II.24/ RC.24/Res.1/01 (2001). These responses, and the widespread reaction of individual states aiding the United States, support the conclusion that Al-Qaeda’s terrorist acts on 9/11 reached the level of an “armed attack.” Under these circumstances, a common (although not unanimous view) is that the armed response against Al-Qaeda was compliant with international law, so long as the other elements of the self-defence law, such as proportionality and necessity, were observed. See, for example, Jordan Paust, “Use of Armed Force against Terrorists in Iraq, Afghanistan and Beyond” (2002) 35 Cornell International Law Journal 533. 6 Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 97. 7 US, Department of Justice, Office of Legal Counsel, “Authority of the President under Domestic and International Law to Use Military Force against Iraq” (23 October 2002) in (2002) 26 Opinions of the Office of Legal Counsel 143 at 179. 8 Velma Hastings Cassidy, Ralph R Goodwin, & George H Dengler, eds, Foreign Relations of the United States: Diplomatic Papers, 1945, General: The United Nations, Volume I (Washington: US Government Printing Office, 1967) at 665 and 667 (Dulles), online: https://history.state.gov/historicaldocuments/​ frus1945v01 [Cassidy, Goodwin, & Dengler]. The specific concern was to ensure that violations of the Monroe Doctrine through political conduct from 337

Notes for Pages 213–215

9 10 11 12 13 14

15 16

17

18

outside the continent designed to “overthrow the political institutions of the American Republics” did not trigger self-defence as outlined in article 51. Thomas Campbell & George Herring, eds, The Diaries of Edward R Stettinius, Jr, 1943–1946 (New York: New Viewpoints, 1975) at 361. Cassidy, Goodwin, & Dengler, above note 8 at 700 (Dulles). Campbell & Herring, above note 9 at 361. Ibid at 362–64. Cassidy, Goodwin, & Dengler, above note 8 at 710 (Dulles). Ibid at 818 (“Mr. Hackworth expressed the view that the present draft greatly qualified the right of self-defense by limiting it to the occasion of an armed attack. Mr. Stassen stated that this was intentional and sound. We did not want exercised the right of self-defense before an armed attack had occurred”). Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, 8 ILM 679, art 31(3)(b) (entered into force 27 January 1980). Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at para 191 [Nicaragua] (distinguishing “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”). Albrecht Randelzofer, “Article 51” in Bruno Simma, ed, The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002) at 796. Eritrea-Ethiopia Claims Commission, Partial Award (2005), 26 Reports of International Arbitral Awards 457 at para 11 (“Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter”). See discussion in Randelzofer, above note 17; David Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus ad Bellum” (2013) 24:1 European Journal of International Law 235 at 243–44. US, Department of Defense Law of War Manual (Maplewood, NJ: Lieber & Sons, 2015) at 1.11.5.2. Elizabeth Wilmshurst, “Principles of International Law on the Use of Force by States in Self-Defence” (London: Royal Institute of International Affairs, 2005) at 6, online: www.chathamhouse.org/publications/papers/view/108106: An armed attack means any use of armed force, and does not need to cross some threshold of intensity. Any requirement that a use of force must attain a certain gravity and that frontier incidents, for example, are excluded is relevant only in so far as the minor nature of an attack is prima facie evidence of absence of intention to attack or honest mistake. It may also be relevant to the issues of necessity and proportionality.

19 Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 320. 20 See UK, Intelligence and Security Committee (ISC), UK Lethal Drone Strikes in Syria (London: Intelligence and Security Committee, 2017) at 11. For similar concerns in the context of drone killings, see UN Special Rapporteur, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions — Addendum: Study on Targeted Killings, Doc A/HRC/14/24/Add.6 (28 338

Notes for Pages 215–218

21

22

23 24 25 26 27 28 29 30 31

32 33 34 35

36 37 38 39

May 2010) at para 41. For other discussions of self-defence and terrorism, see also Alexandrov, above note 6 at 166; Kretzmer, above note 18 at 242–43. See discussion in Randelzofer, above note 17 at 792–93. See also Malcolm Shaw, International Law, 5th ed (Cambridge: Cambridge University Press, 2003) at 1025–26. CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 451 at 497 & 498. Alexandrov, above note 6 at 150. Ibid at 151. Gerald Fitzmaurice to I Kirkpatrick (31 October 1956), UKNA, FO 800/748. Lord Chancellor, Memorandum, “The Right of Intervention” (29 October 1956), UKNA, FO 800/749. UK, HL, Parliamentary Debates, vol 199, col 1355 (1 November 1956). Alexandrov, above note 6 at 152. For a recounting of Pearson’s role, see Antony Anderson, The Diplomat: Lester Pearson and the Suez Crisis (Fredericton, NB: Goose Lane, 2015). Alexandrov, above note 6 at 151. Document headed “Secretary of State” (9 November 1956) at paras 1 & 2, UKNA, FO 800/749. Gerald Fitzmaurice, Minutes (1 November 1956), UKNA, FO 800/749. Ian Brownlie, “Fitzmaurice, Sir Gerald Gray” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/31111. Gerald Fitzmaurice to I Kirkpatrick (4 September 1956), UKNA, FO 800/748. Memo by Gerald Fitzmaurice (29 August 1956), UKNA, FO 800/748. Paper by the attorney general (no date), UKNA, FO 800/748 [emphasis in the original]. See also Reginald Maningham-Buller to Selwyn Lloyd (1 November 1956) at 2, UKNA, FO 800/749. Editors of Encyclopædia Britannica, “Entebbe Raid” in Encyclopædia Britannica, online: www.britannica.com/event/Entebbe-raid. UNSCOR, 31st Year, 1939th Mtg, UN Doc S/PV.1939 (1976) at 14. Alexandrov, above note 6 at 196. Christine Gray, International Law and the Use of Force, 3d ed (Oxford University Press, 2008) at 157–58. It is worth observing that Entebbe differed from other instances where states claimed a right to defend nationals: the hostages had been forcibly taken to Uganda, and had not entered that state voluntarily. Anthony Clark Arend & Robert Beck, International Law and the Use of Force (London: Routledge, 1993) at 99. For different views on the issue of self-defence and protection of nationals abroad, see Arend & Beck, ibid at 111 (doubting there is any controlling rule in the area); Christopher Greenwood, “Self-Defence” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, April 2011) at para 24 (supporting the existence of this right, where the territorial state is unwilling or unable to act); Waldock, above note 22 at 467 (same); Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 299 and 339

Notes for Pages 218–222 301 (disagreeing such a right exists, and denying it can be extracted from the Caroline); Alexandrov, above note 6 at 202 (doubting the existence of this right); Phillip Jessup, A Modern Law of Nations (New York: Macmillan, 1948) at 169 (concluding that any prior right to intervention to protect a national has been superseded by the Charter). See also Cassese, above note 19 at 315 (prepared to accept protection of nationals in limited circumstances); Shaw, above note 21 at 1034 (same). 40 Nicaragua, above note 16 at para 211. 41 Randelzofer, above note 17 at 793. 42 See discussion in Arend & Beck, above note 39 at 93 et seq and 111. See also Alder, above note 4 at 173, noting four instances between 1962 and 2010 in which states justified force, controversially, to protect nationals: Dominican Republic (1965); Uganda (1976); Grenada (1983); and Panama (1989). Gray, above note 39 at 156, proposes a slightly different list: Lebanon (1958); Congo (1960); Dominican Republic (1965); the Mayaguez incident (1975); Entebbe (1976); Iran (1980); Grenada (1983); and Panama (1989).

Chapter 28: Imminence 1 Wolf Blitzer, “Searching for the ‘Smoking Gun’” CNN (10 January 2003), online: www.cnn.com/2003/US/01/10/wbr.smoking.gun. 2 Editors of Encyclopædia Britannica, “Six-Day War” in Encyclopædia Britannica, online: www.britannica.com/event/Six-Day-War. 3 See discussion in Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 153–54; Anthony Clark Arend & Robert Beck, International Law and the Use of Force (London: Routledge, 1993) at 93. 4 Quincy Wright, “The Strengthening of International Law” (1959) 98 Collected Courses of the Hague Academy of International Law 1 at 167. See also Alexandrov, above note 3 at 99, suggesting that the Caroline incident would not fit into the “occur” standard for an armed attack under article 51. As discussed in this book, I do not agree with this assessment. 5 Phillip Jessup, A Modern Law of Nations (New York: Macmillan, 1948) at 166. 6 CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Collected Courses of the Hague Academy of International Law 451 at 498. 7 See also the disagreement expressed with Quincy Wright’s views by Myres McDougal, “The Soviet-Cuban Quarantine and Self-Defence” (1963) 57:3 American Journal of International Law 597. 8 See the discussion in International Law Association (ILA), Draft Report on Aggression and the Use of Force (ILA Conference, Johannesburg, May 2016) at 10 [ILA]. Albrecht Randelzofer, “Article 51” in Bruno Simma, ed, The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002) at 803. Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 308–9. 340

Notes for Page 223 9 Waldock, above note 6 at 498. In 2005, the UN Secretary General’s report, In Larger Freedom, accepted a form of anticipatory self-defence. UN Doc A/59/2005 at para 124: “Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened.” 10 Yoram Dinstein, War, Aggression and Self-Defence, 4th ed (Cambridge: Cambridge University Press, 2005) at 191. See also discussion in Alexandrov, above note 3 at 163–64; ILA, above note 8 at 10. Malcolm Shaw, International Law, 5th ed (Cambridge: Cambridge University Press, 2003) at 1030. See also the discussion in John Yoo, Point of Attack: Preventive War, International Law, and Global Welfare (Oxford: Oxford University Press, 2014) at 84–85. 11 See Christopher Greenwood, “Self-Defence” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, April 2011) at para 42 (noting that debate over anticipatory self-defence sometimes involves uncertainty over what behaviour can be said to be included in “armed attack”). See also Ian Brownlie, International Law and the Use of Force by States (London: Clarendon Press, 1963) at 367 and 433 (declaring anticipatory self-defence unlawful, but also acknowledging that an attack needs to be defined in context: a missile flying through the air may be destroyed before entering an attacked state’s airspace). Brownlie also worried that “little guidance is available as to what situations justify anticipatory action beyond the verbal formula of Webster in the Caroline case” (ibid at 367). For a further discussion, see Murray Colin Alder, The Inherent Right of Self-Defence in International Law (Dordrecht, NL: Springer, 2013) at 177. 12 Velma Hastings Cassidy, Ralph R Goodwin, & George H Dengler, eds, Foreign Relations of the United States: Diplomatic Papers, 1945, General: The United Nations, Volume I (Washington: US Government Printing Office, 1967) at 709 (Stassen), online: https://history.state.gov/historicaldocuments/frus1945v01 [Cassidy, Goodwin, & Dengler]. 13 US, Department of Justice White Paper, “Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior/Operational Leader of Al-Qa’ida or An Associated Force” (no date) at 7, online: www.law.upenn.edu/ live/files/1903-doj-white-paper. See also US, Department of Justice, Office of Legal Counsel (OLC), “Authority of the President under Domestic and International Law to Use Military Force against Iraq” (23 October 2002) in (2002) 26 Opinions of the Office of Legal Counsel at 143 at 184. 14 Department of Justice White Paper, above note 13 at 8. 15 UK Parliament, Joint Committee on Human Rights, The Government’s Policy on the Use of Drones for Targeted Killing, 2nd Report of Session 2015–16, HL Paper 141; HC 574 (10 May 2016) at 45, online: www.publications.parliament. uk/pa/jt201516/jtselect/jtrights/574/574.pdf. The parliamentary committee raised concerns about the indefiniteness of this standard (ibid at 47). See also the discussion of imminence and the difficulties associated with it in militarized anti-terrorism in UK Intelligence and Security Committee (ISC), UK 341

Notes for Pages 223–226

16 17

18

19

20

21 22

23

24

25 26

Lethal Drone Strikes in Syria Report (April 2017) at para 40, online: http://isc. independent.gov.uk/committee-reports/special-reports. See also Yoo, above note 10 at 88. UK Parliament, Joint Committee on Human Rights, above note 15 at 46. International Control of Atomic Energy, Department of State, Publication 1702 (1946) at 164, cited in Jessup, above note 5 at 167. For a more recent discussion making the same points, see US, Department of Justice, OLC, above note 13 at 183 et seq. “First Report of the Atomic Energy Commission to the Security Council, December 30, 1946” (1947) 1:2 International Organization 389 at 395. See also discussion in Cassese, above note 8 at 308; McDougal, above note 7 at 600–1. Arend & Beck, above note 3 at 77–79; Alexandrov, above note 3 at 159–61; United Nations, “Consideration of the Provisions of Chapter VII of the Charter,” Repertoire of the Practice of the Security Council (1981–1984) at 326. UNSCOR, 36th Year, 2281st Mtg, UN Doc S/PV.2281 (1981); UNSCOR, 36th Year, 2280th Mtg, UN Doc S/PV.2280 (1981). United States, Office of the President, US National Security Strategy 2002 (Washington: Executive Office of the President, 2002) at 15, online: http:// nssarchive.us/NSSR/2002.pdf. Blitzer, above note 1. United States, Office of the President, US National Security Strategy 2006 (Washington: Executive Office of the President, 2006) at 23, online: http:// nssarchive.us/NSSR/2006.pdf. It was not reproduced in the Obama administration national security strategies of 2010 and 2015. See the discussion in Randelzofer, above note 8 at 803 and note 138; Jutta Brunnée, “The Meaning of Armed Conflict and the Jus ad Bellum” in Mary Ellen O’Connell, ed, What Is War? An Investigation in the Wake of 9/11 (Leiden: Brill Martinus Nijhoff, 2012 at 38–39; Christopher Greenwood, “The Caroline” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law, April 2009) at para 7 (Webster’s formula “has been widely cited as the origin of a right to anticipatory self-defence but as limiting that right to cases where an armed attack is imminent”). For references to the Caroline language, see UNSCOR, 36th Year, 2280th Mtg, UN Doc S/PV.2282 (1981) (Uganda, Great Britain) and the 2283rd Mtg, UN Doc S/PV.2283 (1981) (Sierra Leone). UNSCOR, 36th Year, 2288th Mtg, UN Doc S/PV.2288 (1981) at para 80. See discussion in Greenwood, “The Caroline,” above note 23 at para 51. Yoo, above note 10 at 85. US Department of Justice, OLC, above note 13 at 194. Abraham Sofaer, “On the Necessity of Pre-emption” (2003) 14:2 European Journal of International Law 209 at 220, urging among other things that the Caroline’s strict imminence standards were only intended to apply to preemptive self-defence on the territory of a state not itself the source of the threat, but which is still willing and able to suppress that threat. This is a puzzling view, since as Sofaer notes, in the Caroline affair, the United States was 342

Notes for Pages 226–227

27

28

29

30

31 32

33

34

not able to suppress the threat. At any rate, as discussed further below, there was nothing pre-emptive about the Caroline raid. UNSCOR, 2280th Mtg, above note 24 at 11. The two authorities were Waldock, above note 6, and DW Bowett, Self-Defence in International Law (Manchester: Manchester University Press, 1958) at 191 & 192. Memorandum from William H Taft IV, Legal Advisor to the State Department, to members of the American Society of International Law-Council on Foreign Relations (ASIL-CFR) Roundtable, “The Legal Basis for Preemption” (18 November 2002). See also the views of former UK Foreign Office legal advisor, Daniel Bethlehem, “Principles Relevant to the Scope of a State’s Right of Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” (2012) 106 American Journal of International Law 1 at 4 (urging that the 1842 Webster-​ Ashburton correspondence included “anticipatory self-defence”). David Sanger, “Beating Them to the Prewar” New York Times (28 September 2002), online: www.nytimes.com/2002/09/28/arts/beating-them-to-theprewar.html. See also David Ackerman, “International Law and the Preemptive Use of Force against Iraq” in Congressional Research Service Report for Congress (17 March 2003) at 2 (correctly noting that Canadian territory had been occupied in advance of the raid, but also asserting the “classic formulation of the right of preemptive attack was given by Secretary of State Daniel Webster in connection with the famous Caroline incident”). UK, HL, Parliamentary Debates, 5th ser, vol 660, col 370 (21 April 2004) (The attorney general (Lord Goldsmith)), online: www.publications.parliament.uk/ pa/ld200304/ldhansrd/vo040421/text/40421-07.htm. US, Department of Justice, OLC, above note 13 at 180. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 (27 June 1986) at para 200, dissenting opinion of Judge Schwebel. See also Thomas M Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002) at 97. As is now common, those who use the Caroline to advance an argument for anticipatory self-defence misunderstand the facts. In Franck’s case: the incident “involved a pre-emptive attack by the British in Upper Canada against a ship in American waters used by American Fenian raiders to challenge British rule in Canada.” (Ibid at 67, n 82.) See also Arend & Beck, above note 3 at 72 (discussing the Caroline as if it had not yet aided the insurgents). See also James Green, “Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law concerning Self-Defence” (2006) 14 Cardozo Journal of International and Comparative Law 429 at 443 (suggesting that the “rebels on Navy Island had not yet launched an attack against British territory”). Oil Platforms (Islamic Republic of Iran v United States of America), [2003] ICJ Rep 161 (Reply and Counter-Claim of Iran, 10 March 1999). Pleadings are available, online: www.icj-cij.org/en. Oil Platforms (Islamic Republic of Iran v United States of America), ibid (Counter-​ Memorial and Counter-Claim of the United States, 23 March 2001 at 147). See 343

Notes for Pages 227–230

35

36

37 38

39

40

41 42

43

also Oil Platforms (Islamic Republic of Iran v United States of America), ibid (Rejoinder of the United States, 23 March 2001 at 165–66) (arguing that the Caroline was inapplicable “since it involved an anticipatory use of force, whereas here the United States acted following actual armed attacks on U.S. ships”). John Dodson, John Campbell, & Robert Rolfe to Viscount Palmerston (25 March 1839) Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) vol 2 at 228. Greenwood, “The Caroline,” above note 23 at para 8. Bin Cheng, “Pre-emptive or Similar Type of Self-Defense in the Territory of Foreign States” (2013) 12:1 Chinese Journal of International Law 1 at 3. Cheng attributes the Tribunal’s lack of familiarity with the Caroline’s facts to reliance on John Bassett Moore, A Digest of International Law (Washington: Government Printing Office, 1906), vol 2 at 409. Moore’s treatment contained few extracts from letters setting the context for the Caroline’s diplomatic dispute. Cheng also objects to the logic of the Tribunal’s reasoning. He notes correctly that on that reasoning: if two belligerent states both believed, genuinely, that their adversary was about to occupy a neutral third state, both could invoke self-defence and invade that third country. The rush for invasion would, in Cheng’s words, be rather “Dr Strangelove.” (Cheng, above in this note at 7.) US, Department of Justice, OLC, above note 13 at 181. See, for example, Dinstein, above note 10 at 184. Olivier Corten, The Law against War (Oxford: Hart, 2010) at 409–10. Jordan Paust, “Self-Defense Targetings of Non-state Actors and Permissibility of U.S. Use of Drones in Pakistan” (2010) 19:2 Journal of Transnational Law & Policy 237 at 243–44. For a careful review on this point, see W Michael Reisman & Andrea Armstrong, “The Past and Future of the Claim of Preemptive Self-Defence” (2006) 100 American Journal of International Law 525. For an analysis rejecting any claim that pre-emptive self-defence has emerged as a customary norm, see James Thuo Gathii, “Assessing Claims of a New Doctrine of Pre-emptive War under the Doctrine of Sources” (2005) 43 Osgoode Hall Law Journal 67. See also Jutta Brunnée & Stephen Toope, Legitimacy and Legality in International Law (Cambridge: Cambridge University Press, 2010) ch 6. On this point, see Cheng, above note 36 at 8 (worrying that pre-emptive self-defence should not be allowed “to be used as a subterfuge by the strong to strike the weak at will”). Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 154. United Nations, A More Secure World: Our Shared Responsibility, Report of the UN Secretary-General’s High-level Panel on Threats, Challenges and Change (New York: United Nations, 2004) at para 191, online: www.un.org/en/ peacebuilding/pdf/historical/hlp_more_secure_world.pdf. The Panel did recognize a right to military action against an imminent attack. In fact, Alder, above note 11 at 173, lists five uses of force justified as preemptive self-defence between 1962 and 2010: Cuba (1962); Iraq (1981); Iraq 344

Notes for Pages 230–234 (2003); Syria (2007); and Gaza (2010). In all but the last, the feared danger stemmed from the acquisition of nuclear weapons. 44 Rick Gladstone, “If U.S. Attacks North Korea First, Is That Self-Defense?” New York Times (10 August 2017), online: www.nytimes.com/2017/08/10/ world/asia/us-north-korea-preemptive-attack-questions-answers.html.

Chapter 29: Necessity and Proportionality 1 Ambassador John Negroponte, Permanent Representative of the USA to the UN in New York, to the President of the Security Council (7 October 2001) S/2001/946. 2 Richard Samuels, ed, “Libya Bombing” in Encyclopedia of United States National Security (Thousand Oaks, CA: Sage, 2006) at 431. Whether Hana Gaddafi was killed became an enduring mystery. 3 Acting Permanent Representative of the United States of America to the United Nations, to the President of the Security Council (14 April 1986) UNSCOR, 41st Sess, UN Doc S/17990 (1986). 4 Stanimir Alexandrov, Self-Defense against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 184. 5 Declaration of the Assembly of Heads of State and Government of the Organization of African Unity on the aerial and naval military attack against the Socialist People’s Libyan Arab Jamahiriya by the present United States Administration in April 1986, GA Res 41/38, UNGAOR, 41st Sess, Supp No 53, UN Doc A/41/53 (1986) at 34. 6 UNSCOR, 41st Sess, 2682d Mtg, UN Doc S/PV.2682 (1986) at 43. 7 Jack M Beard, “America’s New War on Terror: The Case for Self-Defense under International Law” (2002) 25 Harvard Journal of Law and Public Policy 559 at 564–65. 8 See discussion in International Law Association (ILA), Draft Report on Aggression and the Use of Force (ILA Conference, Johannesburg, May 2016) at 8–9 [ILA]. 9 Yoram Dinstein, War, Aggression and Self-Defence, 4th ed (Cambridge: Cambridge University Press, 2005) at 243. Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 151 (noting, however, that with the passage of time expectations of a peaceful settlement may increase). The conduct of the Security Council in the Falklands conflict suggests that it viewed the British action as legitimate. See Alexandrov, above note 4 at 133. See also Nigel White, International Conflict and Security Law (Cheltenham, UK: Edward Elgar, 2014) at 38–39. Likewise, there were debates in 1990 and 1991 about whether a right of self-defence triggered by the Iraqi invasion of Kuwait persisted once Saddam Hussein had consolidated his occupation. Was the use of force then “necessary,” given that sanctions were an option? In the end, the Security Council authorized force against Iraq, one of the relatively few times that it has authorized use of force.

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Notes for Pages 234–235 10 Oil Platforms (Islamic Republic of Iran v United States of America), [2003] ICJ Rep 161 at para 76 [Oil Platforms]. 11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at para 237 [Nicaragua]. 12 See discussion in William V O’Brien, “Reprisals, Deterrence and Self-Defense in Counterterror Operations” (1990) 30 Virginia Journal of International Law 421. See also Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 306. 13 See, for example, discussion in O’Brien, above note 12 at 421; Craig Forcese, “De-militarizing Counterterrorism: Anti-terrorism, Human Rights and the Use of Force” in Craig Forcese & Nicole Laviolette, eds, Human Rights of Antiterrorism (Toronto: Irwin Law, 2008) 165. See also Alexandrov, above note 4 at 172 et seq (discussing the application of the self-defence concepts to Israeli military counter-terrorism). Murray Colin Alder, The Inherent Right of Self-Defence in International Law (Dordrecht, NL: Springer, 2013) at 173 lists seven controversial invocations of self-defence in circumstances that amount to reprisals between 1962 and 2010: Yemen (1964); Lebanon (1968); Tunisia (1985); Libya (1986); Iran (1987); Iraq (1993); and Sudan and Afghanistan (1998). Most of these involved reactions to terrorism. 14 The Canadian Forces participation came via Operation APOLLO, October 2001– October 2003. Canada issued a letter to the Security Council in October 2001 justifying its conduct against Al-Qaeda and the Taliban as an “exercise of the inherent right of individual and collective self-defence, in accordance with Article 51 of the Charter of the United Nations.” Chargé d’affaires a.i. of the Permanent Mission of Canada to the United Nations to the President of the Security Council (24 October 2001) S/2001/1005. 15 Negroponte letter, above note 1. See also the British statement, noting that the war in Afghanistan was designed to “avert the continuing threat of attacks”: Stewart Eldon, Chargé d’affaires, UK Mission to the UN in New York, to the President of the Security Council (ibid). 16 Myra Williamson, Terrorism, War and International Law (Farnham, UK: Ashgate, Routledge, 2009) at 217. 17 See, for example, ibid at 216 et seq (urging that the US right to self-defence expired on 28 September 2001 when the UN Security Council adopted resolution 1373, listing measures states were to take in response to terrorism); Ryan Williams, “Dangerous Precedent: America’s Illegal War in Afghanistan” (2011) 33 University of Pennsylvania Journal of International Law 563 at 576 et seq; Theresa Reinold, “State Weakness, Irregular Warfare, and the Right to Self-​ Defense Post-9/11” (2011) 105 American Journal of International Law 244 at 283. 18 For a critique of US conduct on this point, see, for example, Williamson, above note 16 at 218. 19 Helen Duffy, The “War on Terror” and the Framework of International Law (Cambridge: Cambridge University Press, 2005) at 301 et seq. Alder, above note 13 at 172. Alder lists Afghanistan (2001) and Uganda (1979) as two instances of force justified as self-defence raising proportionality concerns 346

Notes for Pages 235–238 between 1962 and 2010. The Uganda conflict with Tanzania in 1979 led to the overthrow of Idi Amin’s regime. See Alder (ibid at 140). 20 See discussion in Malcolm Shaw, International Law, 5th ed (Cambridge: Cambridge University Press, 2003) at 1031, n 88; Duffy, above note 19 at 162: [T]he proportionality test should be applied vis-à-vis the requirements of averting the threat, as opposed to in respect of the scale of that threat or of any prior armed attack. Arguments as to numbers of persons killed in the original attack outweighing numbers killed in subsequent counter-measures are of political relevance only. Alexandrov, above note 4 at 167. ILA, above note 8 at 9. 21 For a discussion of the different methods of computing proportionality, see especially David Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus ad Bellum” (2013) 24:1 European Journal of International Law 235. Notably, in several cases, the ICJ has apparently contrasted the harm caused by armed attack against the scale of the act of self-defence in assessing the existence of proportionality. In Nicaragua, above note 11 at para 176, the ICJ described proportionality as “proportional to the armed attack,” without further discussing this point. In Oil Platforms, above note 10 at para 76, the court concluded that the destruction of two Iranian oil platforms by the United States, in addition to the destruction of “two Iranian frigates and a number of other naval vessels and aircraft” was not proportionate “to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life.” (Ibid at para 77.) See also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), [2005] ICJ Reports 168 at para 147 (noting, without deciding, “that the taking of airports and towns many hundreds of kilometres from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence”).

Chapter 30: Unwilling or Unable 1 Henry Stephen Fox to Consul in New York (19 January 1838), UKNA, FO 97/17 at 106 [emphasis in original]. 2 For a discussion of S/RES/2249 (2015), and its ambiguity on this question, see note 27 below. 3 See the video, reproduced in David Pugliese, “Gen Tom Lawson Tries to Dig Jason Kenney Out of a Bomb Crater of His Own Making” National Post (31 March 2015), online: http://news.nationalpost.com/news/canada/canadianpolitics/david-pugliese-gen-tom-lawson-tries-to-dig-jason-kenney-out-of-abomb-crater-of-his-own-making. 4 Sir George Arthur to Lord Glenelg (17 December 1838), Doc 575, in Sir George Arthur, The Arthur Papers (Toronto: University of Toronto Press, 1957) vol 1 at 456 (“the [US] authorities were either unwilling or unable to prevent aggression against Canada”). 347

Notes for Pages 238–240 5 Julian Pauncefote to Secretary of the Admiralty (July 1881) Arnold (Lord) McNair, International Law Opinions (Cambridge: Cambridge University Press, 1956) vol 2 at 276. 6 Harry James, Farrer Herschell, & J Parker Deane to Marquess of Salisbury (6 July 1881), ibid at 275. 7 Ashley S Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense” (2012) 52:3 Virginia International Law Journal 483 at 486. 8 Ibid at 549. 9 For discussion on this point, see International Law Association (ILA), Draft Report on Aggression and the Use of Force (ILA Conference, Johannesburg, May 2016) at 12 [ILA]. 10 Note, for example, S/RES/1373 (2001) at para 2. 11 See discussion in Christian J Tams, “The Use of Force against Terrorists” (2009) 20:2 European Journal of International Law 359. 12 Chargé d’affairs a.i. of the Permanent Mission of Canada to the United Nations to the President of the Security Council, Doc S/2015/221 (31 March 2015): “States must be able to act in self-defence when the Government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its territory.” 13 Permanent Representative of Australia to the United Nations to the President of the Security Council (9 September 2015) Doc S/2015/693: “States must be able to act in self-defence when the Government of the State where the threat is located is unwilling or unable to prevent attacks originating from its territory.” 14 Permanent Representative of the United States of America to the United Nations to the Secretary-General (23 September 2014) Doc S/2014/695: States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, as reflected in art 51 of the Charter of the United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. 15 Chargé d’affaires a.i. of the Permanent Mission of Turkey to the United Nations to the President of the Security Council (24 July 2015) Doc S/2015/563: “It is apparent that the regime in Syria is neither capable of nor willing to prevent these threats emanating from its territory, which clearly imperil the security of Turkey and the safety of its nationals.” 16 Reported in Marty Lederman, “The War Powers Resolution and Article 51 Letters Concerning Use of Force in Syria against ISIL and the Khorasan Group [updated to add statement of the UN Secretary-General]” Just Security (23 September 2014), online: www.justsecurity.org/15436/war-powersresolution-article-51-letters-force-​syria-isil-khorasan-group.

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Notes for Page 240 17 Permanent Representative of Belgium to the United Nations to the President of the Security Council (7 June 2016) Doc S/2016/523: ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. 18 Chargé d’affaires a.i. of the Permanent Mission of Germany to the United Nations to the President of the Security Council (10 December 2015) Doc S/2015/946: ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. 19 Permanent Representative of Denmark to the United Nations to the President of the Security Council (13 January 2016) Doc S/2016/34 (invoking article 51 without further explanation of its application). 20 Permanent Representative of Norway to the United Nations to the President of the Security Council (3 June 2016) Doc S/2016/513 (invoking article 51 without further explanation of its application). 21 Identical letters from the Permanent Representative of France to the United Nations to the Secretary-General and the President of the Security Council (9 September 2015) Doc S/2015/745. 22 Identical letters from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations to the Secretary-General and the President of the Security Council (26 November 2014) Doc S/2015/851; Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations to the President of the Security Council (7 September 2015) Doc S/2015/688; Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations to the President of the Security Council (3 December 2015) Doc S/2015/928 (all invoking article 51 self-defence to justify use of force in Syria, although not expressly “unwilling or unable”). 23 Ashley Deeks, “The UK’s Article 51 Letter on Use of Force in Syria” Lawfare Blog (12 December 2014), online: www.lawfareblog.com/uks-article-51letter-use-force-syria. For an audit of state practice on the “unwilling or unable” issue, see Elena Chachko & Ashley Deeks, “Who Is on Board with ‘Unwilling’ and ‘Unable’” Lawfare Blog (10 October 2016), online: www.lawfareblog.com/who-board-unwilling-or-unable. 349

Notes for Pages 240–243 24 Ibid. 25 Oliver Corten, “The ‘Unwilling or Unable’ Test: Has It Been, and Could It Be, Accepted?” (2016) 29:3 Leiden Journal of International Law 777. 26 Ibid at 788–89. 27 S/RES/2249 (2015) at para 5 (calling on, but not requiring, UN member states “to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq”). For an excellent canvassing of this issue, see Oren Gross, “Unresolved Legal Questions Concerning Operation Inherent Resolve” (2017) 52 Texas International Law Journal 221. See also Dapo Akande & Marko Milanovic, “The Constructive Ambiguity of the Security Council’s ISIS Resolution” (21 November 2015) EJIL: Talk (blog) (arguing, in essence, that the wording permits an “eye of beholder” validation of different legal positions on use of military force on the territory of Syria), online: www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution. 28 S/RES/1373 (2001); S/RES/1368 (2001). 29 For instance, ILA, above note 9 at 12, states that [r]ather than being relied upon as a new justification for resort to force, the unwilling or unable test should be viewed as a component of the necessity criteria. It is an additional test that must be satisfied when taking action against a non-state actor on the territory of another state, and does not obviate the need to adhere to all other obligations attached to the exercise of self-defence. Even after seeking resolution through the host state proves futile, forcible measures by the victim state must be proportionate and be limited to those strictly necessary in the context of self-defence against the non-state actor. Accordingly, even if accepting the right of self-​ defence against non-state actors, if the forcible measures taken by the victim state unnecessarily include use of force directly against the host state, this may be an instance in which self-defence comes in conflict with Article 2(4). 30 Hannis Taylor, A Treatise on International Public Law (Chicago: Callaghan, 1901) at 406. 31 For a discussion of some of these issues, see Adil Ahmad Haque, “On the Precipice: The US and Russia in Syria” Just Security (19 June 2017), online: www.justsecurity.org/42297/precipice-u-s-russia-syria.

Chapter 31: The Caroline 's Legacy 1 Cited in Mark White, The Cuban Missile Crisis (London: Macmillan, 1996) at 142. 2 Martti Koskenniemi, From Apology to Utopia: The Structure of International Argument (Cambridge: Cambridge University Press, 2005) at 608. 350

Notes for Pages 243–247 3 On these points, see also Stephen Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005) at 326 et seq. 4 Ibid at 328. See also Institut de droit international, “Present Problems of the Use of Force in International Law” (2007) 72 Annuaire de l’Institut de droit international — Session de Santiago du Chili 77 at 80 (“During the last sixty-two years almost all those who, legally or illegally, used armed force claimed to act under Article 51 of the Charter, while every notion contained in Articles 51 and 2(4) has been challenged, narrowed or broadened by State practice and by theory”). 5 Velma Hastings Cassidy, Ralph R Goodwin, & George H Dengler, eds, Foreign Relations of the United States: Diplomatic Papers, 1945, General: The United Nations, Volume I (Washington: US Government Printing Office, 1967) at 669–70 (MacLeish), online: https://history.state.gov/historicaldocuments/ frus1945v01 [Cassidy, Goodwin, & Dengler]. 6 Thomas Campbell & George Herring, eds, The Diaries of Edward R Stettinius, Jr, 1943–1946 (New York: New Viewpoints, 1975) at 361. 7 Koskenniemi, above note 2 at 594. 8 Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, 2001) at 4. 9 Secretary of state to the ambassador in France (23 April 1928) in US, Department of State, Papers Relating to the Foreign Relations of the United States, 1928 (Washington, Government Printing Office, 1928) vol 1 at 36–37. 10 Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 310. 11 W Michael Reisman & James E Baker, Regulating Covert Action: Practices, Contexts, and Policies of Covert Coercion Abroad in International and American Law (New Haven: Yale University Press, 1992) at 48. For similar views in relation to self-defence, see Abraham Sofaer, “On the Necessity of Pre-emption” (2003) 14:2 European Journal of International Law 209. 12 See Chapter 1, at main text accompanying note 11 and forward. 13 Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017) at 314. 14 Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford: Oxford University Press, 2014) at 127–28. 15 Richard A Clarke, Against All Enemies: Inside America’s War on Terror (New York: Free Press, 2004) at 24. 16 See the discussion in Bob Woodward, Plan of Attack (New York: Simon and Schuster, 2004), especially at 297. See also Peevers, above note 14 at 151 and 194. The legal theory most forcefully advanced argued for a standing authorization from the Security Council’s original resolutions in the 1990–1991 Gulf War, now resuscitated when Iraq asserted non-compliance with those resolutions. See William H Taft IV & Todd F Buchwald, “Preemption, Iraq, and International Law” (2003) 97 American Journal of International Law 557. 17 US, Department of Justice, Office of Legal Counsel (OLC), “Authority of the President under Domestic and International Law to Use Military Force against 351

Notes for Pages 247–248

18 19

20

21

22

Iraq” (23 October 2002) in (2002) 26 Opinions of the Office of Legal Counsel 143. See Woodward, above note 16 at 163. Barack H Obama, “A Just and Lasting Peace” (Nobel Lecture delivered at Oslo City Hall, Oslo, Norway, 10 December 2009), online: www.nobelprize.org/ nobel_prizes/peace/laureates/2009/obama-lecture_en.html. See, for example, The White House, Office of the Press Secretary, US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations outside the United States and Areas of Active Hostilities (23 May 2013), online: https://obamawhitehouse.archives.gov/the-press-office/2013/05/23/factsheet-us-policy-standards-and-procedures-use-force-counterterrorism; US, Department of Justice, Office of Legal Counsel, Memorandum for the Attorney General re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi (16 July 2010), online: www.aclu.org/sites/default/files/field_document/2014-06-23_ barron-memorandum.pdf; US, Department of Justice, White Paper, Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior/Operational Leader of Al-Qa’ida or an Associated Force (Washington: Department of Justice, 2013),online: www.law.upenn.edu/live/files/1903-doj-white-paper; Charlie Savage, “Secret U.S. Memo Made Legal Case to Kill a Citizen” New York Times (9 October 2011). Jeffrey Goldberg, “The Obama Doctrine” The Atlantic (April 2016), online: www. theatlantic.com/magazine/archive/2016/04/the-obama-doctrine/471525 (“In the days after the gassing of Ghouta, Obama would later tell me, he found himself recoiling from the idea of an attack unsanctioned by international law or by Congress”). See the critique made by Michael Glennon, The Fog of Law (Stanford: Stanford University Press, 2010) at 65–66, 110, and 153. Glennon’s analysis depends, in part, on a narrow reading of self-defence that, for example, strictly excludes anticipatory self-defence (ibid at 117). Yet, such strict construals are probably a minority view. And he points to the numbers of instances states have used force, calling them violations (ibid at 228). This simple statistic may be challenged since statistical databases with this information vary in quality. See the discussion in Kristian Skrede Gleditsch & Steve Pickering, “Wars Are Becoming Less Frequent: A Response to Harrison and Wolf” (2014) 67:1 Economic History Review 214. Nor does this simple statistic demonstrate what would have happened in the absence of the Charter rules on use of force, but again, there is no control group drawn from a world without the Charter. Put another way, Glennon’s critique is mounted on an empirical observation that cannot prove his theses. For a counterview, see Jutta Brunnée & Stephen Toope, Legitimacy and Legality in International Law (Cambridge: Cambridge University Press, 2010) at 283 and 349 (concluding in direct opposition to Glennon that “Article 2(4) remains healthy as a binding legal obligation”). This is an old debate. See discussion in Louis Henkin, “The Reports of the Death of Article 2(4) Are Greatly Exaggerated” (1971) 65:3 American Journal of International Law 544. 352

Notes for Pages 251–255

Epilogue: The Protagonists’ Fate 1 Rear Admiral Andrew Drew, A Narrative of the Capture and Destruction of the Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottiswoode, 1864) at 27. 2 Kenneth Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-​ American–Canadian Relations, 1837–1842 (Tuscaloosa: University of Alabama Press, 1989) at 47. 3 Canadian Newspaper Directory, 1st ed (Montreal: A McKim, 1892) at 42. 4 See the reproduction included in John Charles Dent, The Story of the Upper Canadian Rebellion (Toronto: Blackett Robinson, 1885) vol 2 at 210–11. See also Roland Nafus, Navy Island: Historic Treasure of the Niagara (Youngstown, NY: Old Fort Niagara Association, 1998) at 100. 5 Henry Stephen Fox to Lord Aberdeen (25 September 1841) in Further Papers Relating to the Arrest of Mr. McLeod in the State of New York, Foreign Office, UKNA, FO 881/13 at 11. 6 Frederick H Armstrong & Ronald J Stagg, “Mackenzie, William Lyon” in Dictionary of Canadian Biography, vol 9 (1861–1870), online: www.biographi.ca/ en/bio/mackenzie_william_lyon_9E.html. See also William Kilbourn, The Firebrand: William Lyon Mackenzie and the Rebellion in Upper Canada (Toronto: Clarke Irwin, 1956) at 226 et seq. 7 Lillian F Gates, “Sutherland, Thomas Jefferson” in Dictionary of Canadian Biography, vol 8 (1851–1860), online: www.biographi.ca/en/bio/sutherland_ thomas_​jefferson_8E.html. 8 Shaun J McLaughlin, The Patriot War along the New York-Canadian Border (Charleston, SC: History Press, 2012) at 47 and 191. 9 Thomas Clemens, “Winfield Scott (1786–1866)” in Encyclopedia Virginia, online: www.encyclopediavirginia.org/Scott_Winfield_1786-1866. 10 Francis Bond Head, The Emigrant (New York: Harper, 1847) at 169. 11 Ibid at 170 et seq. Sydney Jackman, Galloping Head: The Life of the Right Honourable Sir Francis Bond Head (London: Phoenix House, 1958) at 115–17. 12 Head, above note 10. 13 Ged Martin, “Head, Sir Francis Bond” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/12807. 14 Beckles Willson, Friendly Relations: A Narrative of Britain’s Ministers and Ambassadors to America (1791–1930) (Freeport, NY: Books for Libraries Press, 1969) at 151. 15 “Fox, Henry Stephen” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/10036. 16 Alvin Laroy Duckett, John Forsyth: Political Tactician (Athens, GA: University of Georgia Press, 1962) at 217–18. 17 “John Tyler” in Encylopaedia Britannica, online: www.britannica.com/ biography/John-Tyler. 18 “Temple, Henry John” and “Gordon, George Hamilton” in Oxford Dictionary of National Biography, online: https://doi.org/10.1093/ref:odnb/27112 and https://doi.org/10.1093/ref:odnb/11044 respectively. 353

Notes for Pages 255–257 19 “Baring, Alexander” in Oxford Dictionary of National Biography, online: https:// doi.org/10.1093/ref:odnb/1380. 20 Richard Current, “Daniel Webster” in Encyclopaedia Britannica, online: www.​britannica.com/biography/Daniel-Webster. 21 Alexander McLeod to secretary for the Colonies (April 1853), UKNA, FO 5/614 at 84. 22 Lord Metcalfe to Lord Stanley (7 April 1845), UKNA, FO 5/614 at 54, attaching the Report of the Committee of the Legislative Assembly of Canada (18 March 1845); Address to Her Majesty of the Legislative Assembly of Canada (1846), ibid at 85. 23 Francis Bond Head to Alexander McLeod (2 March 1844), UKNA, FO 5/614 at 72. 24 Charles Bagot to Stanley (5 May 1842), UKNA, FO 5/614 at 35; Sir Robert Peel to Alexander McLeod (31 March 1853), ibid at 90. R Pakenham to Lord Aberdeen (28 May 1846), ibid at 77. 25 JD Harding to Earl of Clarendon (May 1853) in Clive Parry, ed, Law Officers’ Opinions to the Foreign Office, 1793–1860 (Westmead, UK: Gregg International, 1970) vol 5 at 361–62; JD Harding, A Cockburn, and Richard Bethell to Earl of Clarendon (20 November 1854), ibid, vol 6 at 119 and 124. 26 John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party (Washington: Government Printing Office, 1898), vol 3 at 2419. 27 JE Rea, “McLeod, Alexander” in Dictionary of Canadian Biography, online: www.biographi.ca/en/bio/mcleod_alexander_10E.html; John Noyes, “The Caroline: International Law Limits on Resort to Force” in John Noyes, Lara Dickinson, & Mark Janis, eds, International Law Stories (New York: Foundation Press, 2007) at 293. I have been unable to confirm this fact in the original documents. 28 Stevens, above note 2 at 170. 29 John Ireland, “Andrew Drew: The Man Who Burned the Caroline” (1967) 59:3 Ontario History 137 at 148. 30 Peter Baskerville, “MacNab, Sir Allan Napier” in Dictionary of Canadian Biography, vol 9 (1861–1870), online: www.biographi.ca/en/bio/macnab_allan_ napier_9E.html. 31 Henri Pilon, “Elmsley, John” in Dictionary of Canadian Bibliography, vol 9 (1861–1870), online: www.biographi.ca/en/bio/elmsley_john_1801_63_9E. html. Alfred Donner, “The Honourable John Elmsley” (1936–1937) 4 CCHA Report 23, online: www.umanitoba.ca/colleges/st_pauls/ccha/Back%20Issues/ CCHA1936-37/Dooner.html. 32 UK, HC, Parliamentary Debates, vol 56, col 1150 (1 March 1841). Stevenson to Webster (18 March 1841) in Kenneth Shewmaker, ed, The Papers of Daniel Webster, Diplomatic Papers, Volume 1, 1841–1843 (Hanover, NH: University Press of New England, 1983) at 51. 33 Drew, above note 1 at 12–13. 34 “Report of the Select Committee of the House of Assembly of Upper Canada” (30 April 1838), contained in “Copies of Extracts of Correspondence relative 354

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35

36

37 38

39 40

to the Affairs of Canada” (6 June 1839), in UK, House of Commons Papers 1839 at 10. David Young, Historical Facts and Thrilling Incidents of the Niagara Frontier, 2d ed (Niagara Falls, NY: Schultz, 1903) at 104. NS Benton to John Forsyth, Correspondence between Viscount Palmerston & Mr. Stevenson, relative to the seizure and destruction of the steam boat “Caroline,” in the Niagara River, on the night of the 29th December, 1837, by a detachment of Her Majesty’s forces from Upper Canada, UKNA, FO 881/12 [Palmerston Correspondence] at 32, online: https://archive.org/details/ cihm_46050. Niagara General Sessions, January Term 1838, in ibid at 52; Report from the Select Committee of the House of Assembly of Upper Canada (30 April 1839), found at Enclosure 2, No 6 at 10, in Accounts and Papers, Colonies: British North America (Session 5 February–27 August 1839), vol 32 at 418. There was confusion about whether Usher participated in the raid. He was not on the muster list. However, his brother later wrote to MacNab to report his brother arrived too late to register on the list of volunteers, but that Usher was on one of the boats of the expedition that never made it to the Caroline itself. John Usher to MacNab (10 November 1841), in North York, ON, Archives of Ontario, Allan Napier MacNab fonds, F 38. There are conflicting stories of Usher’s murder. I have drawn mine from “The Canadian Rebellion of 1837” (February 1888) 7 Magazine of Western History 359 at 367. The men were said to have come from Buffalo and the alleged murderer — ​Benjamin Lett — is reported to have boasted of the deed, and while passing through Rochester, NY, shown the carbine with which he claimed to have committed the murder: A copy of a report of the House of Assembly of Upper Canada, reproduced as (1839) 128 The London Quarterly Review 285 at 495 (reprinted in The Quarterly Review, Volume LXIV, London: John Murray, 1839). Lett went on to a regular career of anti-British sabotage, as noted in other parts of this book. See also Stevens, above note 2 at 57–58; Nafus, above note 4 at 99. Drew, above note 1 at 15–16. “Report of the Select Committee of the House of Assembly of Upper Canada,” above note 34 at 11 (reproducing a paragraph said to come from an unnamed Buffalo newspaper advancing an argument favouring the murder of Drew, MacNab, Arthur, and several other protagonists who had attracted American ire). Drew, above note 1 at 15–20. See Report from the Select Committee of the House of Assembly of Upper Canada, above note 35 at 11, in Accounts and Papers, Colonies: British North America (Session 5 February–27 August 1839), vol 22 at 419, reporting a Buffalo newspaper column effectively inciting vengeance against Drew (as well as MacNab and several others) for the death of patriots. See also Ireland, above note 29 at 154 (reporting that a $3,000 bounty had been placed on Drew’s head). Drew was also in considerable legal peril. The British ambassador to the United States warned the then lieutenant-governor of Upper Canada in 1841 that if Drew or his men “were to fall into the hands of the Americans, they would be condemned and executed for murder.” Henry Stephen Fox to 355

Notes for Pages 257–258

41

42

43 44

45

46

Sir George Arthur (3 January 1841), Doc 60, in Kenneth Bourne, ed, British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, Pt 1, Series C, North America 1837–1914, vol 1 (Frederick, MD: University Publications of America, 1986) at 108. See also Fox to Bagot (20 April 1842), UKNA, FO 97/17 at 581 (reporting intelligence that “patriots” continued to watch “the movements of the captors of the Steam Boat ‘Caroline’”). Drew, above note 1 at 3. I have not been able to confirm directly that there were such reports in the British media. One hundred and sixty deaths would constitute a great exaggeration of even the American exaggerations of casualties. There were, however, false rumours during the period that Drew had left prisoners on board the ship to be burnt. See WV Light to Allan Napier MacNab (17 November 1841) (disputing these rumours, and claiming to be the last man on board the Caroline), in North York, ON: Archives of Ontario, Allan Napier MacNab fonds, F 38. William R O’Byrne, A Naval Biographical Dictionary (London: John Murray, 1849) at 306; Drew, above note 1 at 21. Notice of the commendation and award of a sword is reproduced, respectively, in [Kingston] Chronicle and Gazette (15 May 1838) 3, col 1, online: www.digitalkingston.ca/historic-newspapers/ newspapers-index/chronicle-and-gazette/card/drew-capt-andrew-5; and [Kingston] Chronicle and Gazette (7 February 1838) 2, col 6, online: www. digitalkingston.ca/historic-newspapers/newspapers-index/chronicle-andgazette/card/drew-capt-andrew-3. Francis Bond Head conveyed his commendation of Drew to Lord Glenelg, and asked that this commendation be passed on to the Admiralty. Head to Glenelg (9 February 1838), in Copies of Extracts of Despatches from Sir FB Head on the Subject of Canada (22 March 1839), in UK, House of Commons Papers 1839 at 465. O’Byrne, above note 42 at 306. Sir George Arthur to Henry Booth (30 March 1839), Doc 714, in Sir George Arthur, The Arthur Papers (Toronto: University of Toronto Press, 1957) vol 2/1 at 102 (indicating that in the event of war, and the need to capture Fort Niagara, “[i]t is impossible that you can have a better man for that work than Commodore Drew”). ML Magill, “Drew, Andrew” in Dictionary of Canadian Biography, vol 10 (1871– 1880), online: www.biographi.ca/en/bio/drew_andrew_10E.html; Ireland, above note 29 at 148–49. Irene Crawford, “Captain Andrew Drew” (unpublished monograph bearing the mark of the Oxford Historical Society, 1981) at 11 et seq. (on file with the author). Court-martial findings reproduced in [Kingston, ON] Chronicle and Gazette (30 September 1840) 1, col 2–3, online: www.digitalkingston.ca/historicnewspapers/newspapers-index/chronicle-and-gazette/card/drewcommander-​andrew-1. Drew was admonished on less serious charges, mostly concerning etiquette. See also discussion in Ireland, above note 29 at 152. Head was clearly anxious about Drew’s fate. Robinson to Arthur (30 October 1839), Doc 961, in Arthur, above note 43, vol 2/2 at 297. He thought that Drew was being persecuted in Canada. See Head to Arthur (28 June 1841), Doc 1843, 356

Notes for Pages 258–260 in Sir George Arthur, above note 44, vol 3 at 434. But Arthur considered that both he, and the Governor General of Canada, Sydenham were “desirous that he [Drew] should be protected and countenanced.” Arthur to Russell (7 July 1841), Doc 1904, in Arthur, ibid, vol 3 at 437. 47 Ireland, above note 29 at 148. 48 Ibid at 151. 49 Drew, above note 1 at 21. 50 Ireland, above note 29 at 154. Ireland suggests there are reasons to doubt this claim about an economic loss. 51 See Irene Crawford, “Interview: Carol Ann Turner; Subject: Living in the Drew House for 38 Years” (20 August 1990), a transcript of an interview with the then current owner of Rathbourne, collected from Woodstock Museum and on file with the author. See also Ontario, County of Oxford, Registry Office, Abstract of Title. Otherwise unmarked and undated document, collected from Woodstock Museum and on file with the author. 52 Mary Byers & Margaret McBurney, “Woodstock Regency House Built by Royal Navy Captain” Globe and Mail (10 February 1983) at 21. 53 “Drew, Captain Andrew — Historic Sites Board Plaques Dedication” (17 May 1959), online: Woodstock Museum www.woodstockmuseum.ca/research/collection-categories/communication-artifacts/documentary-artifacts/33948. The text of the plaque may be viewed in Mary Ellen Perkins, A Guide to Provincial Plaques in Ontario (Toronto: Natural Heritage/Natural History Inc, 1989) at 205. 54 Ireland, above note 29 at 155. Drew, above note 1 at 3. 55 Crawford, above note 51 at 3. For the Drew family tree, see “Captain Andrew Drew — Family History” authored by Drew’s descendant, Mary Robinson, in 2003, acquired from the Woodstock Museum and on file with the author. 56 [Kingston] Chronicle and Gazette (23 November 1842) 3, cols 2–3, online: www. digitalkingston.ca/historic-newspapers/newspapers-index/chronicle-andgazette/card/drew-capt-andrew-11. 57 “Appointments” [London] Morning Advertiser (18 May 1846) 4. The appointment of a full naval captain to this presumably humble post attracted derision from at least one newspaper letter writer. Kentish Independent (30 May 1846) 3. His descendants believe that Drew’s wife Mary died while in Africa. Family tree marked “Captain Andrew Drew — Family History” authored by Drew’s descendant, Mary Robinson, in 2003, and on file with the author. 58 “Admiral Drew” in Annual Register: A Review of Public Events at Home and Abroad for the Year 1878 (London: Longmans, 1879) at 183. 59 Drew, above note 1 at 21. 60 Ibid at 4. 61 “Admiral Drew” in Annual Register, above note 58. 62 Ron Woollacott, Camberwell Old Cemetery: London’s Forgotten Valhalla (London: Ron Woollacott, 2011) at 33. 63 Frank Severance, ed, Publications of the Buffalo Historical Society: The Book of the Museum (Buffalo: Buffalo Historical Society, 1921) vol 25 at 195–200. The 357

Notes for Pages 260–262

64 65 66

67 68

69 70 71

72

73

74

figurehead may be viewed, online: www.buffalohistory.org/Explore/Exhibits/ virtual_exhibits/2009_maritime/images/figurehead_popup.jpg. Nafus, above note 4 at 19 and 141–43. Ibid at 21 and 145. Indian and Northern Affairs Canada, Specific Claims Branch, Reporting Centre on Specific Claims, online: http://services.aadnc-aandc.gc.ca/SCBRI_E/Main/ ReportingCentre/External/externalreporting.aspx. The Mississauga Tribal Claims Council alleged that the island was never ceded in the Niagara treaty of 1781, relating to the west side of the Niagara River. That treaty is found, online: www.aadnc-aandc.gc.ca/eng/1370372152585/1370372222012. The government concluded “no lawful obligation found” in 1995. Ray Spiteri, “Cleaning Up Navy Island” Niagara Falls Review (27 June 2008), online: www.wellandtribune.ca/2008/06/27/cleaning-up-navy-island. Parks Canada, Fort George, Butler’s Barracks, Fort Mississauga, Navy Island, Queenston Heights, Mississauga Point Lighthouse and Battlefield of Fort George Management Plan (Gatineau, QC: Parks Canada, 2006) at 25 et seq. Nafus, above note 4 at 160–61. Ibid at 109–12. Brian Ross, Cesare D’Annibale, & Kyla Spence, “National Parks and Native Sites Archaeology, Parks Canada, Ontario Service Centre: 1997” (1998) 9 Annual Archaeological Report, Ontario 151 at 159. See also Brian Ross et al, “2002 Field Season Summaries of the National Parks and Native Sites Archaeology Program, Parks Canada, Ontario Service Centre” (2003) 14 Annual Archaeological Report, Ontario 95 at 111. International Committee to Promote Navy Island as Permanent Headquarters for the United Nations, Proposed United Nations Headquarters, Navy Island, Niagara Falls (Buffalo, NY: Baker, Jones, Hausauer, 1945) (on file with the author). “United Nations Almost Built near Niagara Falls” Niagara Falls Up Close (14 April 2014), online: http://niagarafallsupclose.com/united-nations-almostbuilt-near-niagara-falls. See also Nafus, above note 4 at 148 and 158–59. International Committee to Promote Navy Island as Permanent Headquarters for the United Nations, above note 72.

358

Index

Numbers in italics refer to images and/or their captions. Act of Chapultepec, 201–2, 213–14 Adams, John Quincy, Caroline incident, position on, 100, 106, 154 Seminole War, 157 Amelia Island, 156–57 American Revolution, 9 Anglo-Ashanti War, 27 Appleby, Gillman, 43, 82 Armed Activities on the Territory of the Congo (2005), 207 Arthur, Sir George, 41, 66, 74, 86, 96, 149–50

Washington, sent to, 116 Webster and, 116, 118–21 Bellette, 26, 142 Bentham, Jeremy, 137 Border disputes, resolution of, 115–16, 121 Brant, Joseph, 16 Brierly, James Lesley, 205 British army, 98 British North America Act, 252

Barcelona, 52–53, 69 Baring, Alexander (Lord Ashburton), 117 Aberdeen and, 116–17 Caroline incident response to call for apology for, 119–21 tasked with resolution of, 116, 117 death, 255 economic impact of appointment, 116 self-defence position, 117, 119–21

Campbell, John, 150–51 Canning, Lord, 142–43 Caroline battle aboard, 42–43 border disputes and, 54–55 capture vs destruction, 38 casualties from battle, 46–47, 50, 61–62 conduct of Canadian raiders, 44 conflicting accounts of raid, 42, 42–43, 46–47, 49, 61–62, 82 Drew on destruction of, 35–36, 38, 42–43

359

Destroying the Caroline ferrying men and weapons to Navy Island, 33 formal war between states, lack of, 147 Fox on sinking, 73–74 injuries during battle, 44, 49, 50 MacNab’s complaints to US authorities, 34 MacNab’s orders, 37–38 raiders board and call for surrender, 42–43 reason for journey, 33–34 sighted travelling to Schlosser, 32, 39 significance of capturing, 35 sinking of by Canadian militia (1837), 2, 39–41, 43–44, 45, 46 surrender of, 43 uncertainty of ship’s docked location, 39 Caroline, aftermath of American intervention, criticism over lack of, 64, 66–67 American media on incident, 61–62, 63 American reaction to sinking, 50, 52–53, 59–61, 70 anniversary meetings, 81 British account of, 75–78, 101 British media on, 63–64 British North American media on, 64 diplomatic outcome, economic reasons for, 60 House of Representatives Foreign Affairs Committee report, 99 international relations following, 67–71, 82 neutrality, conflict surrounding, 64, 65, 75–76, 148–50, 152–53 piracy claim, 109 raids by Patriots, 81 resolution, lack of clear winner in, 122, 125 resolution of dispute, 120–21, 122 resolution of dispute, need for, 114–15, 116–17

self-defence argument, 103–4, 110, 149–50, 153–54, 163–64, 173–76 self-preservation, 77, 126, 151–53, 171–72, 174, 179, 189–90, 205 Caroline test. See Webster test Chichester, 144 Clausewitz, Carl von, 129–30, 181, 184 Clay, Henry, 70, 160 Copenhagen (1807), 141–43, 172, 188 Covenant of the League of Nations, 180, 181 Cowen, Judge, 104–5, 147 Crittenden, John Jordan, 102 Daesh, 1, 213, 237–41 Digest of International Law, 228 Drew, Andrew, 30 Anglo-Ashanti War, 27 assassination attempts, 257, 258 Barcelona planned interception of, 53 withdrawal of orders to search, 53 Bellette, aide-de-camp on, 26, 142 Caroline, 32 battle aboard, 42–43 firearm use during raid, 41 mission to capture, 35, 38–44 surrender and sinking of, 44, 49 Colborne, 258 commander of naval brigade, 29 death, 260 early life, 25 England, return to, 259 Eurotas, midshipman on, 26 Gambier, on, 26 Head’s orders regarding maintaining peace with United States, 53 immigration to Canada, 28 justice of the peace role, 29 lieutenant, promotion to, 27 MacNab’s militia, enlistment in, 24, 29 McLeod trial, refusal to take part in, 114

360

Index Napoleonic Wars, 26 Phillimore, relationship with, 27–28 Phillimore on, 26 popularity, 29 promotion to commander, 28 Rathbourne estate, 259 rebellions (1837), 29–30 reputation after raid, 257–58 Royal Navy, 26, 259–60 Thetis, senior lieutenant on, 27 Vansittart, and, 28 Woodstock, settlement in, 28 Drone strikes, 1–2, 215, 224, 248 Dulles, John Foster, 213–14, 215 Duncombe, Dr Charles, 12, 24 Durfee, Amos, 44, 46, 61, 82 Eden, Anthony, 214, 216 Elmsley, John Caroline, destruction of, 32, 39 Catholicism, conversion to, 25 death, 256 Durfee, death of, 46 early life, 25 Executive Council member, 25 Family Compact, and, 25 rebellion (1837), 24–25 Royal Navy opinion on, 25 service in, 24 Eurotas, 26 Everett, Edward, 111 Family Compact, 10, 23, 25 Fighting Island, 54 First Nations treaty negotiations, 16 Fitzmaurice, Gerald, 193, 217–18 Forsyth, John, 13 American ambassador to Spain, 68 British account of Caroline events, on, 74–76 Fox and, 67, 69, 81, 150 governor of Georgia, 68 McLeod, on potential release of, 84, 85

McLeod’s trial, on, 114 political career, early, 68 secretary of state, appointed, 68 Stevenson and, 73, 74–76, 79 Texas revolution, 160 Fort Niagara, 15 Fort Schlosser, construction by British (1763), 15, 16 Fox, Henry Stephen Britain, relations with, 10, 14, 66–70, 85, 86, 87, 103 Caroline raid, on, 66–70, 73–74, 103, 150, 161–62 death, 254 Forsyth and, 67–70, 73–74, 81 McLeod’s release, argument for, 83–85, 87–88, 101, 102–3, 105 Palmerston and, 88, 107 Tyler assumes office, 102 Webster and, 101–2, 103, 106 Gambier, James, 26 Grand Island, 16, 17, 32, 53–54 Grey, Earl, 143 Grotius, Hugo, 133, 134, 136, 138 Halleck, HW, 173, 175 Hamilton-Gordon, George (Lord Aberdeen) British foreign secretary, becomes, 111 Caroline incident, self-defence position, 117 death, 255 orders to Fox re McLeod outcome, 111 war, preparation for, 113 Harrison, William Henry Caroline incident, absence of federal jurisdiction in, 85 death, 102, 254 Seward and, 92 Webster, appointment of, 91 Head, Sir Francis Bond

361

Destroying the Caroline American government, on inaction by, 74 American Panic (1837), on, 14 American Patriots, hatred by, 253 assembly for new elections, dissolution of, 11 background, 11 baronetcy, 12 bounty on during rebellion, 19 Caroline, on destruction of, 59 death, 254 Family Compact and, 11 Fox and, 149 insurgent army, on, 20–21 leaves Canada, 253 lieutenant-governor of Upper Canada, appointment as, 11, 254 Lower Canada rebellion, use of military force in, 12 Mackenzie, relationship with, 11, 13, 19 MacNab, appointment of, 23 Marcy and, 14–15 Napoleonic Wars, 11 privy councillor, 254 provincial ministry, opposition to, 11 reformers and, 11–12 resignation, 12 tax measures, 11 US press on, 116 Higgins, Rosalyn, 205 Hobbes, Thomas, 170 Horgan, John, 116 House of Representatives Foreign Affairs Committee, 68–69, 99 Hughes, CH, 52 Hunters’ Lodges, 54, 55, 102, 114

freedom of war, 169–70 inadequacies of, 3, 126 influence of, 3–5 Law of Nations, The, 137–39, 205 myth system, 246 natural law, 126, 127 positivist approach, 126, 127, 165, 169 social condition, as, 130 sources of, early, 126–27, 186 textbooks of, 126–27, 138–39 UN Charter, 2, 185, 196, 197–202, 216, 247 International Military Tribunal (IMT), 203 Iroquois, alliance with British, 15 Jackson, Andrew, 68, 156, 157–58, 162 Jennings, Robert Yewdall, 189–90, 205 Jessup, Phillip, 205 Kellogg, Frank B, 184, 185–87 Kellogg-Briand Pact creation of, 184–85 crimes against peace, 203–4 defensive wars, outlaw of, 189 flaws of, 196 implications of, 184–85, 196 Nuremberg trials, 203–4 self-defence, lack of definition, 201–2 UN Charter, influence on, 198 violations of, 191, 195 Wright on, 189 Kenney, Jason, 237 Kent, James, 106, 148 Khan, Reyaad, 1–2, 215, 224

International Court of Justice (ICJ), 197–98, 206–8, 218–19 International law. See also Self-defence; War; Webster test Caroline dispute, application of, 119–21, 206, 243 customary, 186–87

La Clorinde, 34 Law of Nations, The, 137–39, 205 League of Nations Covenant anti-aggression provision, 182, 192 breaches of, 191–92 creation of, 179–80 flaws, 182–83, 185, 199 Japan leaves, 195 measures short of war, 182–83, 185

362

Index peaceful dispute settlement, 181, 182 self-defence and self-preservation, 183 Legality of the Threat of Use of Nuclear Weapons (1996), 207 Locarno Treaties, 184 Locke, John, 138 Lytton Commission, 193, 194–95 Mackenzie, William Lyon American allies, 12, 14, 20, 251, 252 arrest, 14 Caroline raid, account of, 252 conviction and pardon, 251 death, 252 early life, 10 extradition request, denial of, 14 Family Compact and, 10 flight to Buffalo, NY, 12, 251 Head bounty on, 19 relationship with, 11 head of provisional government, named, 19 journalist career, 251 loss of seat on legislative assembly, 10 MacNab and, 23, 81 propaganda put out by, 19 rebellions (1837–1838), 12–13, 17, 19 Rensselaer and, 14, 17, 19 return to Canada, 252 Upper Canada reformer, as, 10, 13–14, 252 MacLeish, Archibald, 244 MacMillan, Margaret, 179–80 MacNab, Allan Napier Barcelona, absence from crisis, 53 British retaliation against insurgents, commander of, 23 Caroline, destruction of, 37–38, 59 criticism of decision to sink Caroline, 59 death, 256 363

Gore militia lieutenant colonel, 23 knighted, 256 Mackenzie and, 23–24, 81 Navy Island, plan to invade, 52–53 peace with United States, on, 53 rebellion (1837), 24 responsible government, opposition to, 23 Royal Navy officers, enlistment of, 24 speaker of the assembly, elected, 23 Madawaska settlement, boundary dispute at, 74 Manchurian conflict, 192–96 Manifest destiny, 9–10 Marcy, William, 13 Marianna Flora, The, 136–37 McCormick, Shepherd, 43, 256 McLeod, Alexander arrest, 81–82, 102, 256 bail release, attempted, 87–88 compensation, seeks, 256 death, 256 diplomatic implications of arrest, 44, 55, 83–85, 88–89 diplomatic implications of release, 114 habeas corpus seeking release, 104 immunity, declined, 104–5 Palmerston, involvement in case, 83, 107–8 protection, increased, 107 return to Canada, 114 trial, 113–14 verdict, 114 Melbourne, Lord, 67, 88 Military and Paramilitary Activities in and against Nicaragua (1986), 206, 227 Minos, 113 Mississauga Nation, treaty with British (1781), 16 Monroe, James, 156–57, 159, 162 Montgomery’s Tavern, 12, 24, 81 Napoleonic Wars, 9, 33, 150

Destroying the Caroline Navy Island, 20. See also Caroline “Panic” of 1837, 13, 60 American Revolutionary War, role Peace movement, 180 in, 17 Pearson, Lester, 217 archaeological potential, 261 Peel, Sir Robert British shipyard (1761), 16 Fox, on, 116 Canadian designation, 17 replaces Palmerston, 111 current surrounding, 34 war, preparation for, 112 history of, 15 Pelee Island attack, 54 Indigenous history, 15, 16, 261 Permanent Court of International Jusinsurgent army, 19–20 tice (PCIJ), 181, 186 legal status, 17 Phillimore, John location, 15 Bellette, captain of, 26, 142 MacNab’s arrival, 24 Drew, relationship with, 25–26, 35 MacNab’s plan to invade, 52 Drew on, 26 occupation by Canadian militia, 14, Thetis, captain of, 27 49–50 Phillimore, Robert Joseph, 151–53, 165, rebellions (1837–1838), 17–19, 49–50 172, 173–74 strategic value of occupation, 17 Phillipson, Coleman, 183 succession to British from Seneca, 16 Poinsett, JJ, 51 UN headquarters, proposal for Positivism (1945), 262 international law, 126, 127, 165, 169 War of 1812, British occupation natural law, replaces, 171–72 during, 17 prisoners of war, treatment of, 169 Neutrality laws self-preservation, 171–72 Forsyth demands enforcement of, Pufendorf (Puffendorf), Samuel von, 13–14 133–34, 135, 136, 138, 148 Head’s orders to Mackenzie regarding, 24 Rebellions, 1837 Neutrality Acts (US), 65, 71 American intervention, lack of, 14, neutrals, rights and duties of, 65, 35–36 143–44, 148 American militia volunteers, 14, Phillimore on, 151–53 51–52 Vattel and, 138 American retaliation for Caroline, 54 New Brunswick boundary disputes, Caroline, destruction of, 41–47 54–55 casualties from, 46–47, 49 North Atlantic Treaty Organization diplomatic outcome, reasons (NATO), 202 behind, 60 Elmsley’s arrival, 25 Obama, Barack, 248 end of, 54–55 Oil Platforms (2003), 207, 227 Head and MacNab’s retaliation, 24 Oppenheim, Lassa, 176–77, 205, 228 insurgent army, 14, 20–21, 49, 51 Navy Island, occupation of, 19–21, 49 Pact of Paris (1928), 184, 187, 191 neutrality laws and, 31, 52–54, 63–64 Palmerston, Viscount. See Temple, opposing US army, 51 Henry John political lead-up to, 10 364

Index Schlosser, early firing at, 32 shelling attack, 21 Six Nations militia, 51 tactical challenges of setting, 31, 34–35 Revolutionary War, 16 Royal Proclamation of 1763, 16 Rush-Bagot agreement, 113 Russell, John, 78 Rutherford, Thomas, 136–37 Schlosser, 34, 34, 44 Scott, Winfield American Civil War, 253 army, assembling, 51 Aroostook valley boundary dispute, 54–55 Barcelona, purchases, 52 Barcelona standoff, 52–53, 242 Chippawa, commander at, 50 dispatch by Van Buren, 50 insurgent force, arrest of, 53 Mackenzie’s American supporters, on, 51 political career, 253 rebellion (1837), initial sympathy for, 51 US military career, 50 war, on risk of, 113 War of 1812, 50 Second World War, 4, 164, 180, 196, 197, 199, 203–5, 230 Self-defence. See also International law; War; Webster test abuse of justification, 230–31 anticipatory, 204, 222–23, 224–28 Bush Doctrine, 225, 229–30 Caroline facts, misrepresentation of, 229, 244 collective, 202, 214 definition, lack of, 201–2, 244–45 Halleck on, 173, 175 Jennings on, 189–90 Kellogg on, 185–86, 187, 201 Locarno Treaties, 184 365

necessity, 136, 137, 143, 152, 163 North Korea-US tensions, 230 requirements for, 163 self-preservation, 143–45, 190, 203–4, 205, 215–16 Stimson on, 188–89 UN Charter on, 200–2 use of force as, 2–3, 200, 212–13 Webster test, 125–26, 163–66, 179, 181, 183, 211–12 Webster test and Charter article 51, 212–13 Wright on, 189 Seminole War (1812) Caroline incident and, 160–62, 165 lead-up to, 155–56 military events beginning, 157 Monroe on, 159, 161 Prospect Bluff Fort, 156 self-defence argument, 84–85, 158–59 Spain cedes Florida to United States, 159 Seneca, the, 15, 16 Seven Years’ War, 15 Seward, William Henry, 85, 87, 92, 99, 102, 112 Short Hills attack, 54 Sidmouth, Lord, 143 Sir Robert Peel attack, 54 Six-Day War, 221–22 Stassen, Harold, 201–2 steam-powered vessels, 95–98 Stevenson, Andrew compensation claim, 84 Forsyth on Caroline raid, 75, 88 McLeod case, 88, 110 Palmerston and, 78–79, 110 Webster and, 94, 96, 103 Stimson, Henry, 188–89 Stimson Doctrine, 191 Story, Joseph, 105, 137 Suez Canal crisis, 216 Sutherland, Thomas Jefferson, 14, 54, 252–53

Destroying the Caroline Sydenham, Lord, 86, 88, 95–96, 112 Tallmadge, Daniel, 105 Temple, Henry John (Viscount Palmerston), 79 Caroline complaints, response to, 41, 108, 162 Caroline incident, silence on, 77–78, 81, 84 Caroline sailing, American explanations of, 33 death, 255 Fox, on, 67 leaves office, 111 McLeod’s release, orders, 83, 85 orders to Fox re McLeod case, 88–89, 94, 106 political career, early, 78 premier, 255 prime minister, 255 Russell and, 78 Van Buren and, 77–79 Vattel, familiarity with, 138 Webster-Ashburton Treaty, on, 121–22 Thames attack, 54 Thetis, 27 Toronto, 113 Treaty of Paris (1783) and New York/ Ontario border, 17 Tyler, John, 102 Caroline raid, on irresolution of, 114–15 Caroline resolution, economic motivations for, 121–22 Civil War, 255 death, 255 expulsion from party, 254–55 forcible intervention, 149 Fox, orders to bar exit of, 112 McLeod case, position on, 112 plan in event of McLeod’s execution, 112 replaces Stevenson, 111 states’ rights position, 112 Ugandan hostage crisis (1976), 218–19

United Nations Charter (1847), 2, 185, 196, 197–202, 216, 247 United Nations Emergency Force, 217 United Nations General Assembly, 197, 199–200, 207 United Nations Security Council, 198–99, 235, 243 United States army, 98 Caroline, attacks in revenge for, 54 Congress passes Act following McLeod dispute, 117 fighting fleet, 98 insurgent attacks on British in Canada, 54 insurgent militia (1837), 14 Mackenzie, denial of extradition request for, 16 Navy Island occupation, 14 neutrality laws, 13, 14, 24, 31, 53, 109 “Panic” of 1837, 12–13, 60 Patriot militia, 51–53 states’ rights, 102 territorial expansion, 10 war with Britain, potential, 95–100 Use of force, self-defence and, 2–3 Usher, Edgeworth, 256 Van Buren, Martin administration ends, 91 Britain, relations with, 50, 77, 85, 88–89 death, 254 economic crisis, 60 Forsyth and, 68 insurgent army, 14 limited federalism, 60 neutrality laws, 13 Palmerston and, 78–80 slavery, opposition to, 254 Van Rensselaer, Rensselaer, 14, 17, 19, 31, 35, 253 Vandenberg, Arthur, 201 Vansittart, Henry, 28

366

Index Vattel, Emer de, 64, 137–40, 141, 144, 165 Virginius, 172–73 Waldock, Humphrey, 205, 215, 216, 222, 224–25 War. See also International law; Self-defence; Webster test Aquinas on, 132 Christendom, early, 131–32 Cicero on, 131, 132 declaration between states, 133–34 definition of, 129 freebooting, 135 Greek justification for, 130 Grotius on, 133, 134, 136 imperfect wars, 135, 170–71 intent, 140 just cause, requirements for, 132, 134, 140 just war vs defensive, 132 law of nations, 133 laws governing, 129–30 Locke and, 138 measures short of war, 135–36 natural law philosophy and, 131, 133, 138, 170–71 necessity, 136, 137, 143, 152, 163, 165 neutrality, 134, 143, 165 non-state actors, conflicts with, 135, 212–13, 239 offensive vs defensive, 134, 139–40 Phillimore on, 151–53, 173–74 pre-emption of, 140 Roman justification for, 130–31 Rutherford on, 136 self-defence, 136, 137, 141, 160, 173, 179 self-preservation, 143–45, 152, 171–73, 179 states, rights and duties of, 133 use of force, 198, 208, 222 use of force by states, 198–99 Vattel, Emer de, 137–40, 141, 144 367

War of 1812, 9, 17, 23, 50, 91, 95, 108 Watts, Arthur, 205 Webster, Daniel, 93 border disputes, resolution of, 91–92 Britain, diplomatic relations with, 91, 92, 94 Caroline incident, 92, 103–4, 106, 205 resolution of, 117, 119–21 criticism by Congress, 106 death, 255–56 early career, 91 economic standing, US, 92 Fox and, 101–2, 103–4, 106 Grotius, familiarity with, 136–37 McLeod case, prioritization of, 91–92, 101–2 McLeod, denial of immunity, 105 secretary of state, 85, 91, 255 slavery, on, 255 Stevenson and, 94 Tyler and, 112, 255 Vattel, familiarity with, 138–39 war, on potential, 112 Webster test armed attack absence of, 215, 218–19 definition of, 213–15, 222, 228 atomic weapons, introduction of, 224, 226 Charter article 51 and, 212–13, 215, 216 formula for, 211–12 imminent threat, 217–18, 219, 223–24, 225–28 intercepting attacks, 224 Iraq War (2003), 226 Libya, airstrikes on (1986), 233–34 necessity, 234, 241 obstacle of war, 3, 248–49 Operation Enduring Freedom (2001), 234–35, 236 Osirak raid (1981), 224–25, 226 proportionality, 235–36, 241

Destroying the Caroline self-defence, modern standard for, 3, 165–66, 174–75, 179, 188, 190, 204, 205–6, 243 Six-Day War, 221–22 standards for defensive war, 125–26, 163–66 Suez Canal crisis (1956), 216–17 Syrian conflict, 237–41, 242 Ugandan hostage crisis (1976), 218–19 “unwilling or unable” standard, 238–42

use of force against terrorist groups, 2, 212–13, 215, 223–24, 237–40, 248 Webster-Ashburton Treaty, 60, 121–22 Welland Canal, lock destroyed at, 113 Wellesley, Sir Arthur, 26 Wells, William, 32 Wheaton, Henry, 149, 162 Wilson, Woodrow, 181 Wright, Quincy, 189, 196, 222

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About the Author

Craig Forcese is a full professor at the Faculty of Law (Common Law Section), University of Ottawa (Canada). He is also an adjunct research professor & senior fellow, Norman Paterson School of International Affairs, Carleton University (Canada) and a National Security Crisis Law fellow, Center on National Security and the Law, Georgetown Law (Washington, DC).

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