International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2016/Winter 2017 Issue

Historic Moments in International Law


Another Side of the Caroline

Stephen C. NeffBy: 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;


and McLeod remained in custody.  This incident provoked a flurry of outrage in Britain.  The Times of London thundered against mob rule, and there was talk of war in the event of McLeod’s conviction and execution.  The matter was debated in both houses of the British parliament in February 1841.

Matters took a more cordial turn when the Harrison administration assumed office in the United States in March 1841.  The new Secretary of State, Daniel Webster – who, incidentally, was an strong anglophile – agreed that McLeod, according to the law of nations, could not be tried.  He suggested a resolution of the matter.  If the British government were formally to acknowledge its responsibility for the Caroline raid, the federal government would be able to find some way to stop the prosecution and free McLeod – e.g., by gently persuading the state governor to dismiss the prosecution or even to pardon McLeod.  The British government duly admitted responsibility, as proposed.

When Webster set about procuring McLeod’s release, however, he came up against the daunting opposition of the governor of New York, William Seward, who strongly favored proceeding to trial with McLeod and obstinately refused to facilitate his release.  He had weighty support in the federal Congress, in the florid form of Senator Thomas Hart Benton of Missouri, who denounced Webster for knuckling under to the British – in contrast, he proclaimed, to the more manly Andrew Jackson, who had never been deterred from vigorous action by “musty volumes” of international law.

An attempt by the federal government to have McLeod released on a habeas corpus application to the New York Supreme Court failed.  So the trial duly went ahead, in Utica, New York, in October 1841 – with federal troops quartered watchfully in the near vicinity.  The trial, however, turned out to be something of a damp squib.  It took the jury all of a half-hour to return a verdict of not guilty.  McLeod then returned to Canada, to be greeted by cheering crowds.

McLeod’s lawyers celebrated in a somewhat different fashion, by presenting the British government with a bill of $5000.00 for their services.  The British Foreign Minister, Lord Aberdeen, somewhat taken aback, was mollified (more or less) when informed that “enormous and incredible fees” were commonly charged by American lawyers.

In all events, a potentially serious British-American crisis had been averted by the acquittal verdict.  But the American government was well aware that the escape had been a narrow one.  It therefore took steps to ensure that some future incarnation of Governor Seward would be unable to frustrate this international rule of immunity by invoking states’ rights under the American federal system.  This concern took the concrete form of the enactment by the federal Congress, in August 1842, of the Remedial Justice Act – known popularly, for obvious reasons, as the “McLeod Act.”  This law gave federal courts the power to grant habeas corpus writs in cases where foreign nationals were held in state custody and were accused of committing an act “the validity and effect whereof depend upon the law of nations.”  This was the first such incursion of federal law into the normal field of state action, for the purpose of ensuring United States adherence to rules of international law.

For those in quest of a fuller account of this interesting story, the book to consult is Kenneth R. Stevens, Border Diplomacy:  The Caroline and McLeod Affairs in Anglo-American-Canadian Relations, 1837-1842 (1989).  Those interested in the legal issues at stake have plenty to occupy them at the present day.  The International Law Commission, at the UN, is currently studying the subject of immunity of state officials in foreign courts.  Persons who are interested in, or worried about, the intrusion of the federal government into the affairs of the states, under the banner of international law, will have followed the recent U.S. Supreme Court case of Bond v. U.S. (2014) with great interest.  Finally – but not least -- the “enormous and incredible fees” charged by American lawyers continue to resonate, all too loudly, with present-day litigants.

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