The Merits of the Case

• Author: Craig Forcese
• Pages: 163-166

163

Chapter 21

The Merits of the Case

I would earnely entreat any impartial person to apply this law to the

fas . . . 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 eamer,

the deruion of that eamer .. . was not an a of self-defence.

— roBert josePh PhilliMore (1842)1

I

   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 (“over-

whelming, 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