The Merits of the Case

AuthorCraig Forcese
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
   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

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