Neutrality and Its Limits

AuthorCraig Forcese
Chapter 19
Neutrality and Its Limits
We are of the opinion that the place where the “Caroline” was moored was
not july entitled to the privileges of a neutral territory, and that the British
forces, with a view of self-preservation, were fully juif‌ied in attacking the
“Caroline,” and treating her as a belligerent vessel.
— law offiCers of the Crown (21 feBruary 1838)1
I   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 justif‌i-
cation for it, served as a deeply imperfect precedent for the Caroline.
Judge Cowen in the New York Supreme Court held that the Caro-
line 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 con-
f‌lict on the Niagara River was clearly an “imperfect” conf‌lict (to use the
nomenclature of the day),5 pitting Britain against an insurgency. That

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