Neutrality and Its Limits

• Author: Craig Forcese
• Pages: 147-154

147

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