By: Stephen
C. Neff, Reader-in- Law – Public International Law, University of Edinburgh Law
School
Ardent
readers of this column (we know you’re out there!) will recall the very
informative contribution by James Apple in the Spring of 2012, on the landmark
incident of the Caroline in 1837, and its significance for the
development of the international law of necessity and self-defence. On this
occasion, we will explore another aspect of the case which is far less well
known – but is equally instructive in the manner in which it foreshadowed some
issues which are all too much alive at the present day. Two subject areas were
involved: immunities of government officials from criminal prosecution, in
foreign countries, for acts of state; and the potential expansion of federal
powers within the United States when foreign-policy issues are at stake.
Central
to this other Caroline story were the adventures (or misadventures) of a
colorful Canadian character named Alexander McLeod. McLeod either was or was
not – as the case may be – a member of the hardy band of Canadians (i.e.,
British) who carried out the daring capture and destruction of the Caroline in December 1837, as recounted in the prior column. McLeod certainly had been
involved in spying on the activities of the doings of the Canadian insurgents
(known as the Patriots), reporting on their activities to the government of
Upper Canada – and on one occasion having to flee from a mob in Buffalo which
was sympathetic to the neighboring rebellion.
In the
wake of the Caroline raid, McLeod was reported to have boasted freely of
having played a prominent role in the escapade, to the point that
law-enforcement authorities in New York State began to take an interest in
him. He was arrested in Lewiston, New York in November 1840 and charged with
various violations of the state’s criminal law. There does appear to have been
some real doubt as to his involvement, since a hundred citizens of Niagara,
Upper Canada (where McLeod served as deputy sheriff) signed a petition
asserting that he had not been among the raiding party on the fateful night.
Be
that as it may, the British government was quick to protest at McLeod’s arrest,
on two grounds. The first was that the allegations against him were false.
The second one was that, even if they were true, the Caroline raid was a
“publick act of persons in Her Majesty’s service,” for which there could be no
personal liability on the part of the participants. Any wrongdoing that
occurred must be regarded as exclusively the responsibility of the state of
Great Britain, on the plane of international law. McLeod, in short, was
asserted to be legally immune from prosecution in American courts by virtue of
his (assumed) service as an agent of the British state.
The
response of American Secretary of State John Forsyth, in the dying days of the
van Buren administration, was to the effect that, under the United States
Constitution, the federal government had no power to interfere with the
criminal-law process of the State of New York. So nothing could be done.
At
the same time, tempers were growing short in both countries and desperate
measures were being contemplated. The British government in Canada seriously
considered short-circuiting the trial by posting bail for McLeod’s release, and
then forfeiting it when McLeod skipped the country. This seemed somewhat
dishonourable; but, in the words of Canadian Governor-General Lord Sydenham, it
was “impossible to act with the Americans as you would do with a civilized
people.”
As an
alternative, two local people were found to post the bail. But when word
leaked out, a mob formed to prevent McLeod’s departure – complete with two
commandeered cannons aimed menacingly at McLeod’s cell window. In the face of
this worrying sign of public disapproval, the would-be bailors withdrew their
offer;
International
Judicial Monitor