:^s 
 
 
 £1 
 
 
 ^■s 
 
 2> ?il*$
 
 A LETTER 
 
 TO THE 
 
 RIGHT HON. LORD ASHBURTON, 
 
 SUGGESTED BY 
 
 THE QUESTIONS 
 
 OF 
 
 INTERNATIONAL LAW, 
 
 RAISED 
 
 IN THE MESSAGE 
 
 OF 
 
 THE AMERICAN PRESIDENT. 
 
 BY 
 
 ROBERT PHILLIMORE, 
 
 ADVOCATE IN DOCTORS COMMONS, AND LATE STUDENT OF 
 CHRIST CHURCH. 
 
 " Nec ullum, satis validum imperium erat coercendis seditionibus 
 populi, flagitia hominum ut casrimonias Deum protegentis." 
 
 Taciti Annales, 1. iii. c. 60. 
 
 LONDON : 
 
 J. HATCHARD AND SON, 187, PICCADILLY. 
 
 1842. 
 
 /
 
 SYNOPSIS. 
 
 Introduction — Sanctity of the Law of Nations — Questions at issue 
 between Great Britain and the United States — Self-preservation 
 and inviolability of territory principles of public law — Prefer- 
 ence given to the former in case of conflict — Authorities — A State 
 may virtually as well as literally declare its inability to control 
 its subjects— Authorities and illustrations on this point — 1. De- 
 struction of the Caroline justified; 2. Macleod's case; 3. Ameri- 
 can flag abused to cover the Slave Trade; 4. Boundary ques- 
 tion — Conclusion . 
 
 LONDON : 
 
 T-RINTED BY G. J. PALMER, SAVOY STREET.
 
 A LETTER, &c. 
 
 My Lord, 
 
 The principal questions at issue between Great 
 Britain and the United States of North Ame- 
 rica, which it is the object of your lordship's 
 mission to adjust, involve a consideration of the 
 principles of that law which has necessarily oc- 
 cupied a large sharge of my professional studies. 
 I therefore hope to be excused for the liberty 
 of addressing, in the form of a letter to your 
 lordship, some reflections on those parts of 
 the recent Message of the American President, 
 which relate to the existing differences between 
 the Cabinets of Washington and St. James. And 
 it may, perhaps, be permitted to me, before I enter 
 upon the discussion of these particular topics, to 
 offer a few preliminary remarks upon the general 
 
 b 2
 
 magnitude and importance of the subject en- 
 trusted to your lordship's negociation. 
 
 The increasing reverence paid in modern times 
 to that part of morality which regulates the in- 
 tercourse of independent states, is not the least 
 among the many circumstances which mark the 
 progress of Christendom in refinement and civi- 
 lization. It is the glory of the age in which we 
 live, that the principles of international law have 
 acquired the precision and stability of positive 
 enactment. It may be true, that despite has 
 been occasionally done to these principles, but so 
 may the precepts of municipal law be sometimes 
 evaded or infringed in countries where they are 
 generally cherished and obeyed. It may be true 
 that signal violations of this law are written on 
 the page even of recent history, but he has been 
 a careless and indocile reader who has not per- 
 ceived that they are written for our admonition. 
 The events of the last seventy years are fraught 
 with lessons, that such violations are sooner or 
 later avenged on the heads of those who perpe- 
 trate them. In every instance the severest mea- 
 sures of retributive justice have amply vindicated 
 the eternal majesty of that law, which, for pur- 
 poses of short-sighted selfishness, had been tram- 
 pled underfoot ; and, in spite of certain excep- 
 tions, the Law of Nations has been for many 
 years, and is at this moment, very generally 

 
 cultivated and respected ; its power has been 
 upheld and acknowledged even by those who 
 have broken through its obligations, inasmuch 
 as they have invariably sought to shelter their 
 infractions under some misinterpretation of its 
 letter, or some partial and distorted construction 
 of its spirit, rather than under an open defiance 
 of its principles. No nation can now venture 
 openly to despise its sanctions. Such, indeed, 
 have been, in former times, the attempts 
 of arbitrary will, conscious that its condem- 
 nation was to be found in the digests of those 
 great writers, whose deep thought and irresis- 
 tible reason it strove to ridicule as the science of 
 theoretical pedants. It is not so now. While 
 the commonwealth of Christendom is true to 
 itself, no power can be so absolute as to defy 
 with impunity the decisions of this tribunal. 
 There is a growing conviction among the wise 
 and good in both hemispheres, that to the con- 
 science of nations may be applied the profound 
 and beautiful remark on the conscience of indi- 
 viduals, " Had it strength as it had right ; had 
 it power as it had manifest authorit}^, it would 
 absolutely govern the world. " # To enumerate 
 the various causes which may have contributed 
 to this desirable result, would be without the 
 scope and exceed the limits of these remarks, 
 * Bishop Butler, Sermon III., on Human Nature.
 
 6 
 
 but among them would certainly be reckoned 
 the rise of independent states on the other side 
 of the Atlantic, various in their forms of govern- 
 ment, advancing daily in commercial wealth and 
 national greatness, rich in the elements of moral 
 power, and though comparatively unprovided 
 with the equipment of immediate war, affording 
 at all times a powerful means of adjusting, by 
 their alliance or interposition, the equipoise of 
 the civilized world. To no people can the main- 
 tenance of International Law, the vital principle 
 of which is, that neither the form of government 
 nor the relative strength or weakness of king- 
 doms, creates any distinction of right, be of 
 nearer interest or greater importance. " Quoique 
 les Americains, (says their eloquent panegyrist,) 
 soient pour ainsi dire seuls sur le continent, le 
 commerce leur donne pour voisins tous les peuples 
 avec lesquels ils traffiquent, Malgre leur isole- 
 ment apparent les Americains ont done besoin 
 d'etre forts." # In the North American Re- 
 public we accordingly find a very general study 
 of jurisprudence, and we are indebted to their 
 citizens for many treatises j* on the Law of Na- 
 tions, valuable, even if they had no other merit, 
 
 * De Tocqueville, de la Democratic en Amerique, tome 
 iii. p. 223. 
 
 -J- See the Commentaries of Mr. Chancellor Kent, Mr. 
 Justice Storey, and Mr. Wheaton.
 
 for their tendency to imbue the public mind 
 with the elements at least of this science, 
 however much the thorough mastery of it 
 may belong to an intimate acquaintance with 
 the original writers, whose appearance deters 
 from their perusal a fastidious epitome-loving 
 age, impatient of prolixity, and intolerant of the 
 ponderous volumes which contain the fruits of 
 their wisdom. Now if it be the interest as well as 
 the duty of the United States of America to ex- 
 hibit a practical obedience to the law of nations 
 towards all countries, it is most especially so in 
 their conduct towards Great Britain. It is al- 
 most needless to say that the converse of this 
 proposition is true, that the observation is equally 
 applicable to England, that the coincidence of 
 duty and interest is not less palpable in her case 
 than in that of North America. For to pass 
 over the ties of affinity, of common origin, com- 
 mon language, many common institutions, and 
 a most closely interwoven commercial interest, 
 it is sufficient to observe that these two countries 
 have conterminous possessions, and therefore 
 every infraction of right cannot fail to be 
 immediately felt and resented, while its con- 
 sequences may be incalculable. To avert, in- 
 deed, so horrible a calamity as war between two 
 countries under such relations to each other, it 
 would become the magnanimit\^ of both to pass
 
 8 
 
 over many little affronts, many petty provoca- 
 tions, which might arise from the indiscretion or 
 insubordination of their respective subjects. 
 Their honour stands on too firm a basis to be 
 blown away by the breath of every hot-headed 
 and ignorant babbler, or to be injured by the in- 
 significant and unauthorised misdemeanors of 
 the outcasts of society, whose interest is havoc, 
 and whose delight is confusion. 
 
 But it must be admitted that there are offences 
 which may not be so treated — offences for which 
 a country which did not seek and enforce 
 reparation would forfeit all reputation among civi- 
 lized nations, and as an infallible consequence 
 invite oppression, would lose all security for 
 national independence, and retain the name with- 
 out the reality or benefit of peace. 
 
 It cannot, I think, be denied, that the offences 
 which are at this moment the subject of com- 
 plaint and remonstrance between the United 
 States and Great Britain are of this description. 
 They charge* us with the grievous crime of 
 violating a most sacred national right — the 
 independence of a pacific territory — and of ac- 
 companying the outrage with the aggravated 
 circumstances of destroying the lives and pro- 
 perty of their subjects. We, on the other hand, 
 bring against them the accusation of receiving, 
 
 * See extract from the recent Message of the American 
 President in the Appendix.
 
 9 
 
 fostering, and abetting- traitors in open arms 
 against their sovereign, the ally of America; and 
 of imprisoning for several months, and ulti- 
 mately trying for his life, a British officer, for 
 obeying the commands of his lawful superior, 
 and of continuing to do so after it had been 
 formally notified to them that the act for which 
 this treatment was inflicted, was not the act of 
 an individual, but of his Government. Much 
 irrelevant virulence and idle declamation has been 
 expended on these subjects, but there is only one 
 tribunal before which independent states can 
 plead — and this is, the Law of Nations : in order 
 to obtain its decision, we must first state the facts 
 of the case, and then apply to them the principles 
 of that law. 
 
 First, then, as to the facts of the case. 
 
 Towards the close of the year 1837,* a small 
 portion of the habitans of Lower Canada, a vir- 
 tuous and well-disposed people, whose ignorance 
 and simplicity rendered them an easy prey, 
 were instigated by the restless machinations of 
 certain disaffected demagogues, to rebel against 
 their lawful and constitutional Government. 
 The revolt was suppressed in a few weeks from 
 
 * See the Annual Register for 1808 ; and Dispatches 
 from Sir F. B. Head, Bart., K.C.B., relative to Canada, 
 ordered by the House of Commons to be printed 22nd 
 March, 1839. See extracts in Appendix.
 
 10 
 
 its commencement with a very inconsiderable 
 loss of life to the king's troops. The deluded 
 people found themselves generally deserted by 
 the cowardly traitors who had instigated thern, 
 and returned, with dearly-bought experience, to 
 their former allegiance. In the meanwhile the 
 spirit of mercenary sedition (for it deserved no 
 other name) had with difficulty blown into a 
 flame some sparks of disaffection in the upp( 
 province of Canada, which borders upon the: 
 territory of the United States. This attempt wa^ 
 more abortive than the one already mentioned ; 
 it met with no kind of sympathy from the mass 
 of the people of the province, who were, as the 
 result proved, sincerely attached to the British 
 constitution. The loyalty and fidelity of the 
 native militia and volunteers, unaided by any 
 regular forces, quickly dispersed the rebels. This 
 outbreak took place on the 29th of November ; 
 and on the 8th of December the governor 
 of the province dismissed the greater part of the 
 militia. The chief action was at a place called 
 Montgomeries' Tavern, near Toronto, which was 
 not attended with loss of a single man to the 
 royalists. The prisoners were immediately re- 
 leased and dismissed to their homes, and before 
 the lapse of a week perfect tranquillity was 
 restored to the province — with one memorable 
 exception — in the river of St. Lawrence, which
 
 11 
 
 separates the state of New York from Upper 
 Canada, lies a small wooded island, called Navy 
 Island, belonging to the latter country. On the 
 13th of December, this spot was seized by a 
 large body of armed men, among whom some, 
 indeed, were Canadian rebels, but by far the 
 greater part were citizens of the United States.* 
 In order to throw some light on this unparalleled 
 outrage, we must for an instant retrace our steps 
 in this narrative. After the total rout of the 
 rebels, on the 8th of December, at Montgomeries' 
 Tavern, the leader and instigator of the tumult 
 deserted, like his brethren in Lower Canada, the 
 people who he had seduced from their allegiance, 
 and took refuge in the county of Buffalo, in the 
 state of New York. During the interval which 
 elapsed, between the 8th and 13th of December, 
 he had succeeded in stimulating a large body of 
 evil-minded and reckless American adventurers 
 to attempt the invasion of Upper Canada, allur- 
 ing them by the hopes of becoming possessors 
 of that territory, which was to be divided, ac- 
 cording to their public proclamation, as so much 
 booty amongst them. 
 
 Great numbers of American citizens publicly 
 enlisted as soldiers with this avowed object ; no 
 
 * See Dispatches of Sir F. B. Head, already referred to, 
 No. 69, p. 471, 6th March, 1838 ; and Message of the Pre- 
 sident of the United States, Dec. 4, 1838.
 
 12 
 
 concealment was pretended : meetings were 
 convened, arms and provision openly distributed 
 for the purpose. To crown all, (though so 
 flagrant an outrage seems, at this moment, 
 scarcely credible,) artillery and am munitions 
 were, in the face of day, taken from the arsenals 
 of the American Government, in order to be 
 employed in acts of piratical aggression against 
 the subjects and property of an ally with whom 
 " they were desirous of maintaining the most 
 friendly relations"* But is it possible- — some 
 stranger to the events of this period will here 
 exclaim — that the American Government took 
 no measures to prevent or to punish proceedings 
 so disgraceful to any civilised community ? And 
 the answer must be, that practically no such 
 measures were taken. Sundry proclamations 
 were indeed issued discountenancing these outra- 
 geous acts, and some kind of military demonstra- 
 tion was made ; but no real or effective impe- 
 diment, it will be seen, was thrown in the way 
 of these piratical hostilities. To say that the 
 American Executive was too feeble, and that 
 these marauders knew and despised its prohibi- 
 tions, is, as will be hereafter more largely shown, 
 either no answer at all to a foreign state, or such 
 a one, as, by the Law of Nations, justifies that 
 
 * See President's Message, December 4, 1838, in 
 Appendix.
 
 13 
 
 state in a course of action otherwise indefensible. 
 By the 13th of December, Navy Island was rilled 
 with a numerous force of Americans, among whom 
 was a handful of Canadian rebels. Into this Bri- 
 tish territory, without the slightest interruption 
 from any constituted American authority, they 
 transported from Buffalo, provisions, stores and 
 artillery, the public property of the United States; 
 they proceeded to throw up defences, and began 
 a series of hostilities against the Canadian side of 
 the river, and at last opened a fire of artillery upon 
 that part which was most thickly peopled. All 
 these proceedings, it may be observed, were strictly 
 aggressive, not a single shot having been re- 
 turned from the British frontier ; while thi*ough- 
 out a whole fortnight, twenty-two pieces of 
 cannon belonging to the American Government 
 were employed in firing upon the subjects of 
 Great Britain ; a landing place on the American 
 shore, called Fort Schlosser, was the chief maga- 
 zine from which they derived their supplies. On 
 the 28th of December, the commander of the 
 Canadian loyalists received undoubted intelli- 
 gence that a small steamer, called the Caroline, 
 had been hired by this body of American citizens 
 and Canadian rebels, for the purpose of securing 
 their communication with the main land, and had 
 actually conveyed a small piece of artillery to the 
 island. The resolution was immediately taken
 
 14 
 
 to destroy this instrument of piracy. Never was 
 an act of signal justice executed with more dis- 
 tinguished gallantry* or in a spirit of greater 
 mercy. Two men who fired upon the British 
 officers were of necessity cut down, the rest 
 were driven from her deck, the vessel itself was 
 set on fire, and precipitated down the Falls of 
 Niagara. 
 
 The consequences of this act were immediate ; 
 the pirates fled from Navy Island, the plan of in- 
 vading the Niagara frontiers was abandoned, and 
 the unoffending inhabitants of Upper Canada, after 
 a few more unsuccessful attempts of a like pira- 
 tical character on other parts of the province, were 
 restored to the blessings and tranquillity of peace. 
 
 The proofs that these outrages were in reality 
 perpetrated by American citizens, without whose 
 aid, instigation, and generalship, the hand- 
 ful of Canadian rebels would have sunk into 
 insignificance, may be abundantly collected by 
 the English reader from two distinct sources, the 
 dispatches of the governor of Lower Canada to 
 the British Government in 1838, and the messages 
 of the American presidents in 1838 and 1839. 
 In the appendix to these pages I have inserted 
 
 * Yet to this day, Captain Drew, R.N., whose conduct is 
 eulogised in the most glowing terms by the Governor of 
 Upper Canada to the Home Government, has received from 
 them no acknowledgment of his services.
 
 15 
 
 extracts, the length of which would disturb the 
 course of my argument in this place. The fol- 
 lowing citations will suffice for the present to 
 establish the fact. * It is proper,'* writes Sir F. 
 Head to Lord Glenelg, ' however, I should inform 
 ' your lordship that as soon as I found that this 
 ' portion of the British Empire was perfidiously 
 1 attacked and assailed by American citizens under 
 ' American leaders, termed 'generals,' that artillery 
 ' and muskets were brought against us from the 
 ' state arsenals, that Navy Island, belonging to 
 1 her Majesty, was actually seized by Americans, 
 ' that batteries were formed there, from which shots 
 ' were fired for many days on the inoffensive in- 
 ' habitants of this province, and that the Island 
 1 was regularly supplied by boats from the American 
 ' shore with provisions and munitions of w.ar, &c. 
 ■ &c. While the gunboats were being prepared, the 
 ' 'American force, under the American commander 
 6 styling himself General Von Rensalaar, continued 
 4 day after day to fire from Navy Island upon the 
 ' unoffending inhabitants of the Niagara frontier, 
 f although not a gun had been fired on the part of 
 ' the British, although the American forces in that 
 ' island were daily increasing, and although a 
 ' steam-boat chartered by these pirates was actually 
 1 employed in transporting to the island munitions 
 ' of war, &c.' And again, in his address to the 
 * Dispatches already referred to. page 466.
 
 16 
 
 parliament of Lower Canada, the governor re- 
 marks, ' With scarcely an exception, every go- 
 1 vernment arsenal from Lake Champlain to Lake 
 1 Michigan has within the last two months been 
 ' broken open and plundered, to furnish arms for 
 ■■ the invasion of this portion of the British 
 
 • Empire ; and however the circumstances may 
 ■ be explained, it is certainly a remarkable fact 
 ' that all these robberies have been effected with- 
 ( out the sacrifice of a single life, and without 
 f even the imprisonment of the person who is 
 ? notoriously the instigator of them.' The Presi- 
 dent of the United States, in his message to the 
 two houses of Congress, Dec. 4, 1838, remarks, 
 ' I had hoped, that the respect for the laws 
 
 * and regard for the peace and honour of their own 
 f country, which have ever characterized the 
 1 citizens of the United States, would have pre- 
 { vented any portion of them from using any means 
 ' to promote insurrection in the territory of a 
 ' power with which we are at peace, and with which 
 1 the United States are desirous of maintaining 
 ' the most friendly relations. I regret, deeply, 
 ' however, to be obliged to inform you, that this 
 ' has not been the case. Information has been 
 
 • given to me, derived from official and other 
 1 sources, that many citizens of the United States 
 
 * have associated together to make hostile incur- 
 ' sions from our territory into Canada, and to aid
 
 17 
 
 * and abet insurrection there, in violation of the 
 ' obligations and laws of the United States, and 
 
 * in open disregard of their own duties as citizens. 
 ' This information has been, in part, conformed by 
 ' a hostile invasion actually made by citizens of 
 ' the United States, in conjunction with Canadians 
 ' and others, and accompanied by a forcible seizure 
 ' of the property of our citizens, and an applica- 
 tion thereof to the prosecution of military opera- 
 1 tions, against the authorities and people of Canada. 
 
 'The results of these criminal assaults upon the 
 i peace and order of a neighbouring country have 
 ' been, as was to be expected, fatally destructive 
 ' to the misguided or deluded persons engaged in 
 'them, and highly injurious to those, in whose 
 1 behalf they are professed to have been under- 
 ' taken.' 
 
 It is manifest then that the American Govern- 
 ment was not in ignorance of these proceedings 
 on the frontier, and therefore from a considera- 
 tion of this short and simple statement of facts, 
 only one of two conclusions can, I think, by 
 possibility be deduced with respect to its conduct: 
 1. That being aware of the hostilities exercised 
 by its citizens against Great Britain, the Ame- 
 rican Government did not think proper to re- 
 press them. 2. That although aware of, and 
 anxious to repress them, it was physically unable 
 to execute its intention. 
 
 c
 
 18 
 
 Now, whichsoever of these hypotheses be true, 
 Great Britain may look with confidence to the 
 Law of Nations for a complete justification of her 
 conduct. In the former case (which is too 
 monstrous to be supposed, and is only stated for 
 the sake of the argument) she would have been 
 unquestionably authorized in making immediate 
 war on the United States : such conduct is pro- 
 nounced # by all jurists to be one of the justest 
 causes of war, and it would be an idle waste of 
 time to accumulate authorities for the establish- 
 ment of so self-evident a proposition. In the 
 latter alternative, which should seem to have been 
 that which actually occurred, we have to show 
 that she was warranted by the Law of Nations in 
 the destruction of the American steamer and in 
 passing the boundary of the American frontier. 
 
 Now the Law of Nations f " grounded upon 
 justice, equity, conscience, and the reason of the 
 thing, and confirmed by long usage," undoubtedly 
 ranks inviolability of territory among its most 
 sacred principles, J but it is because this inviola- 
 
 * See the shortest and clearest statement in Bynkershoek, 
 Quaest. Jur. Publ., 1. i. c. ix., u de statu belli inter non hostes." 
 
 f See the Duke of Newcastle's celebrated answer to the 
 Prussian memorial concerning neutral ships, drawn up by 
 Mr. Murray, (Lord Mansfield) Sir G. Lee, and Sir Dudley 
 Ryder, termed by Montesquieu, " reponse sans replique." - 
 Lcttres Persannes, 1. xlv. 
 
 { Vattel, I. "2, c. 7, s. 93.
 
 19 
 
 bility must, generally speaking, be an essential 
 condition of national security. Self-preservation 
 is considered as a primary object by all law, 
 whether of international for the state, or of muni- 
 cipal for the individual. 
 
 ' Tous les hommes,' (says Vattel,* concisely 
 expressing the opinion of his predecessors,) * et 
 tous les Etats ont un droit parfait aux choses sans 
 lesquelles il ne peuvent se conserver, puisque ce 
 droit repond a une obligation indispensable.' And 
 again :f ' C'est en vain que la nature present 
 aux nations, comme aux particuliers, le soin de 
 se conserver, celui d'avancer leur propre perfec- 
 tion, et celle de leur Etat, si elle ne leur donne 
 pas le droit de se garantir de tout ce qui peut 
 rendre ce meme soin inutile. Le droit n'est autre 
 chose qu' une faculte morale d'agir, e'est-a-dire 
 de faire ce qui est moralement possible, ce qui 
 est bien et conform a nos devoirs. Nous avons 
 done en general le droit de faire tout ce qui est 
 necessaire a l'accomplissement de nos devoirs. 
 Toute nation, comme tout homme, a done le droit, 
 de ne point souffrire qu une autre donne atteinte a 
 sa conversation, a sa perfection, et a celle de son 
 etat, cest a-dire, de se garantir de tout lesion 
 (sec. 18). C'est ce droit de se garantir se toute 
 lesion, que l'on appelle droit de srete, 8fc. Sfc. 
 ' Le (rnoyen) plus sur est de prkvenir la mal, 
 
 * Vattel Preliminaires, vol. 1, page 49, oct. ed. 
 f Vattel, I. 2, c. 4, s. 49. 
 
 c 2
 
 20 
 
 'quand on le peut. Urie nation est en droit de 
 4 resister au mal qu'on veut lui faire, d'opposer la 
 'force, et tout moyen honnete a. celle qui agit 
 ' actuellement contre elle, et meme d'aller au- 
 devant des machinations en observant toutefois de 
 *ne point attaquer sur des soupcons vagues et in- 
 4 certains, pour ne pas s'exposer a devenir elle- 
 
 * meme un injuste aggresseur. Quand le mal est 
 
 * fait, le meme droit de surete autorise l'offense a 
 
 * poursuivre une reparation complete et a y em- 
 ployer la force, s'il est necessaire.' And 
 Kltiber* yet more forcibly : * IS obligation de se 
 
 * conserver soi-mime Vemportant sur toutes les 
 6 autres t la lesion de quelque droit que ce soit doit 
 6 etre excusSe, si dans en cas de necessity evidente, 
 ' et absolue un Hat place entre quelque obligation, 
 6 envers un autre etat et celles que lui impose la 
 1 propre conservation donne la preference a la 
 'derniere, &c. &c.' So Vattel, speaking of a 
 conflict of duties, says, ' Pour ce qui est des 
 1 lois en particulier, on doit sans doute la pre- 
 ference a;ix plus importantes et aux plus neces- 
 'saires. C'est ici la grande regie dans leur con- 
 'flit, celle qui merite le plus d'attention ; et c'est 
 
 * aussi celle que Ciceron met a. la tete de toutes 
 ' les regies qu'il donne sur la matiere.* C'est 
 
 * aller contre le but general du legislateur, contre 
 ' la grande fin des lois, que d'en negliger une de 
 
 * Kluber, Droit des Gens, ch. i, p. 75.
 
 21 
 
 1 grande importance, sous pretexte d'en observer 
 ' une autre moins interessante et moins necessaire. 
 * C'est pecher en effet ; car un moindre bien, s'il 
 ' en exclut un plus grand, revet la nature du mal." 
 All the previous writers on International Law 
 might be cited for the same purpose, viz. of proving 
 that in such a conflict of duties, that of self-defence, 
 sometimes called also the law of necessity, is para- 
 mount to that of abstaining from the invasion of an 
 independent territory. Such a conflict indeed, hap- 
 pily for the peace of the world, can seldom arise. 
 It is as clearly the duty of the injured nation, to 
 seek, if it be possible, redress at the hands of the 
 government of the offending party, as it is of an 
 individual to have recourse to his magistrate in 
 a case of domestic aggression. The case which 
 
 * Primum igitur leges oportet contendere, considerando 
 utra lex ad majores, hoc est, ad utiliores, ad honestiores, ac 
 magis necessarias res pertineat. Ex quo conficitur, ut si 
 leges duse, aut si plures, quotquot erunt, conservari non 
 possint, quia discrepent inter se, ea maxime conservanda 
 putetur, quae ad maxiraas res pertinere videatur. — Cicer. abi 
 supra. 
 
 Jure naturae vis injusta repellitur qua tenus vis, Jure 
 Gentium qua tenus injusta. Ex Jure naturae licet propul- 
 sare quodcunque inimicum est nullo discrimine aequi vel ini- 
 qui ex Jure Gentium adhibito — Jus gentium duntaxat per- 
 mittit se suaque tueri ad versus ea quae inique et injuria in- 
 feruntur. — Bynkershoek Observationes Juris Romani, cap. ii. 
 (vol. ii. quarto ed.) Tit. Propulsatio vis atque injuria quo 
 sensu Juri Gentium tribuatur — in 1. 3 ft. de Just, et Jud.
 
 22 
 
 justifies the invasion of territory, must be, in the 
 language of the recent message of the American 
 President, "of most urgent and extreme neces- 
 sity" — in the yet more emphatic language of Mr. 
 Burke, " one which is not chosen but chooses." 
 But the law of nations does not leave us without 
 a guide for ascertaining when such a contingency 
 may have occurred ; treating states, according 
 to its just and beautiful metaphor, as moral per- 
 sons, it has allotted some elaborate chapters to 
 this subject, considering in the language and by 
 the maxims of the Roman law, # " quandof liceat 
 unicuique sine judice se vindicare." One emi- 
 nent Publicist J closes his observations in a chapter 
 " on the just self-defence of one's self," with these 
 words : ' And therefore, although an intelligent 
 ' judge will be best able to decide on the innocency 
 'of my defence, from the circumstances of the 
 'particular facts, yet we think it may be asserted 
 'in general, that the exact time when a man may 
 'fairly destroy another in his own defence, begins 
 
 * " In iis quae sola ratio commendat a Jure Romano ad Jus. 
 " Gentium 'tuta sit collectio.'' — Bynkershoek ii. Quaest. Jur. 
 Publ. c.iii. So Lord Stowell in the Maria Paulsen. — 1 Ro- 
 binson's Reports, p. 340. 
 
 f Cod. 1. 1. 
 
 j Puffendorffius de jure naturae: et gentium 1.2. c. v-, 
 de defensione sui, s. 8. I have cited Puffendorf because 
 Barbeyrac, in his well-known commentary on Grotius, refers 
 to him with much praise on this particular subject.
 
 23 
 
 - at the instant when the aggressor, shewing plainly 
 1 his design upon my life, and being furnished with 
 ' strength and weapons for its execution, is already 
 1 in possession of a place where he may execute the 
 ' mischief which he contemplates ;' and again, * nor 
 
 * am I obliged to wait till he comes within gun- 
 'shot, but may prevent him with my arms before 
 
 * he can use his own ; this is what the law calls 
 
 * occurrere* in tempore,' which it pronounces to be 
 ' melius quam post exitum vindicare ;' — the con- 
 
 * tinuance of this time for innocent defence is till 
 1 the aggressor either is repulsed or hath retreated 
 ' of his own accord/ This principle of preven- 
 tion, derived originally from the written reason 
 of the Roman law concerning a "damnumf in- 
 fectum," is adopted by all writers on Public 
 Law. Thus, the father of jurists observes, " The 
 ' primary cause of a just war, is an apprehension 
 'of an injury about J to happen, threatening either 
 1 our persons or our property ;" and his perspi- 
 ' cuous commentator Heineccius, remarks, " That 
 6 any imminent peril, provided it be really immi- 
 ' nent and not a mere suspicion, is a justifying 
 ' cause of war ; for instance, not only when a 
 1 neighbour makes openly warlike preparation 
 
 * Cod. 1.3. t. 27. 
 
 t See Burke's Letters on a Regicide Peace. 
 J Grotius, 1. 2, c. 1, s. 82. Prima igitur causa justi belli 
 injuria nondum facta quae petit aut corpus aut rem. 
 § Droit des Gens , 2d. partie, tit. i. ch. 1. s. 43.
 
 24 
 
 4 against; me, but when in various matters he ma- 
 ' nifests a hostile mind towards me, there is no 
 
 * doubt I may lawfully prevent him.' * Chaque 
 
 • etat (says Kluber) est en droit non seulement de 
 1 prevenir, toute lesion immediate on mediate, des 
 'droits qui lui assurent se conservation et sa duree, 
 ' l'aquisition de certains objets sa reputation etc. 
 1 mais aussi de se faire raison soi-meme, de tout 
 ' prejudice porte a l'exercise de ses memes droits.' 
 
 We have seen, then, that the Law of Nations con- 
 siders, first, the right of self-preservation as prior 
 and paramount to that of inviolability of territory — 
 secondly, that in a conflictof duties it would justify 
 the maintenance of the former at the expense of 
 the latter; thirdly, that it has laid down certain 
 criteria whereby to judge when such a case of ne- 
 cessity has or has not arisen. Now I would ear- 
 nestly entreat any impartial person to apply this 
 law to the facts stated in the foregoing pages, to try 
 them by that test, and then to pronounce, whether, 
 when Navy island was occupied by a large pro- 
 portion of Americans mingled with Canadian 
 rebels, possessed of American artillery, fired day 
 and night upon the British frontier, and whether, 
 then, this desperate gang of adventurers was sup- 
 plied with food and arms by an American steamer, 
 the destruction of that steamer (whether on the 
 American or the British side of the St. Lawrence) 
 was not an act of self-defence as justifiable on the 
 part of the government of a state as it would be in
 
 25 
 
 an individual to destroy a bystander, who continu- 
 ally supplied his adversary with a new sword 
 when his own had been wrested from his grasp. 
 It should be further observed, that the close 
 vicinity of America and Canada, the very narrow 
 boundary by which they are separated, renders 
 the dicta of jurists, with respect to the rights of 
 self-defence, applicable in the most stringent 
 manner to these conterminous States. The 
 American President says,* "When border colli- 
 sions come to receive the sanction, or to be made 
 on the authority of either government, general 
 war must be the inevitable result." It would be 
 very difficult, and very far from my intention, not 
 to subscribe to this opinion. But " border colli- 
 sions" would scarcely convey to any simple 
 person's mind the idea of the very particular 
 contingency of rebels in open war against their 
 Sovereign, aided and abetted by the citizens of 
 a conterminous ally of that Sovereign. In such 
 a case, the last persons to complain, that in order 
 to prevent so grievous an evil the exact line of 
 demarcation had been transgressed, should be 
 the government of that ally, which, after re- 
 peated application, had been, not unwilling but 
 unable, to restrain its subjects from the commis- 
 sion of so disgraceful an outrage. 
 
 This last remark brings me to the considera- 
 tion of an objection which I presume, from the 
 * Message for 1841. See Appendix.
 
 26 
 
 President's message, would be urged against the 
 whole of this reasoning. America, it will be 
 said, was neither unwilling nor unable to curb 
 her own citizens, and therefore that there was no 
 excuse for our assumption of her authority. The 
 language of the President is as follows : * In the 
 view taken by the government, the enquiry whe- 
 ther the vessel was in the employment of those 
 who were prosecuting an unauthorized war (rather 
 a gentle phrase for abetting a treasonable sedition) 
 against that province, or was engaged in by the 
 owner in the business of transporting persons to 
 and from Navy Island in hopes of private gain, 
 which was most probably the case, in no 
 degree alters the real question at issue between 
 the two governments. The government can 
 never concede to any foreign government 
 the power, except in a case of most urgent 
 and extreme necessity ', either to arrest the per- 
 sons, or to destroy the property, of those who 
 may have violated the municipal laws of such 
 foreign government, or have disregarded their 
 obligations arising under the law of nations. 
 The territory of the United States must be re- 
 garded as sacredly secure against all such inva- 
 sions until they shall voluntarily acknowledge their 
 inability to acquit themselves of their duties to 
 other's,' It has been my endeavour to show 
 that this exception of " a most urgent and ex- 
 treme necessity *' did exist in this case, and
 
 27 
 
 therefore, that the destruction of the Caro- 
 line fell even within the definition of legality 
 allowed by the President; and, perhaps, the de- 
 fence of the act complained of might be allowed 
 to rest on the argument already adduced on this 
 point; but here I must observe that both the 
 Law of Nations, and the exception allowed by 
 the President, would have fully justified the 
 British authorities in crossing the St. Lawrence, 
 even at the time of the plunder of the state 
 arsenal, and in preventing the cannon of the Ame- 
 rican government from being fired upon her ally. 
 That this course was not taken is characteristic 
 of the spirit of forbearance and moderation dis- 
 played by Great Britain throughout the whole of 
 this transaction. But the latter part of the ex- 
 tract of the President's message contains. a doc- 
 trine so startling in its announcement, and so 
 monstrous in its consequences to the neighbours 
 of the North American republic, that it is of 
 some importance to ascertain whether it has 
 any foundation in Public Law — whether it be 
 undeniable, that however much a state may 
 suffer from the piratical incursions of the citizens 
 of its neighbour, which the feebleness of its exe- 
 cutive government renders it incapable of pre- 
 venting or punishing, that until such govern- 
 ment shall "voluntarily acknowledge" what is 
 clear as the sun at noon, and a matter of daily 
 experience, the injured state has no right to give
 
 28 
 
 itself that security which its neighbour's govern- 
 ment admits it ought to enjoy, but is not able to 
 guarantee ; or whether there be not a practical 
 acknowledgment of such inability, which, as much 
 as a voluntary confession, justifies the offended 
 country in a course of action which would under 
 other circumstances be unlawful. Now there is 
 a very important chapter, both in Grotius, and in 
 his commentator Heineccius, entitled — "depcena- 
 rum communicatione" as to when the guilt of a 
 malefactor, and its consequent punishment, is 
 communicated to others than himself; and the 
 question is particularly considered with refe- 
 rence to the responsibility of a state for the con- 
 duct of its citizens. The tests for discovering 
 " Civitasne deliquerit an cives V are laid down 
 with great precision and unanimity of sentiment 
 by all Publicists, and are generally reduced 
 to two, as will be seen by the following ex- 
 tract from Burlemaqui* (who repeats the opinion 
 of Grotiusf and Heineccius). ' In civil societies,' 
 (he says,) ' when a particular member has done 
 • an injury to a stranger, the governor of the com- 
 ' mon wealth is sometimes responsible for it, so that 
 
 * The Principles of Natural and Public Law, by J. J. 
 Burlemaqui, Professor at Geneva. I only possess the Eng- 
 lish translation, London, 1763. Sir J. Mackintosh calls him 
 " an author of distinguished merit." 
 
 f See Grotius de J. B. & P., 1. 2. c. 21, de pcenarum 
 communicatione, and the admirable ' praelectiones ' of 
 Heineccius on this chapter.
 
 29 
 
 1 war may be declared against him on that account. 
 * But to ground this kind of imputation, we must 
 ' necessarily suppose one of these two things — 
 ' sufferance or reception* viz. either that the sove- 
 ' reign has suffered this harm to be done to the 
 ' stranger, or that he afforded a retreat to the 
 'criminal. In the former case, it must be laid 
 'down as a maxim, that a sovereign who, know- 
 ' ing the crimes of his subject — as, for exam- 
 ' pie, that they practise piracy on strangers, and 
 1 being also able and obliged to hinder it, does not 
 4 hinder it, renders himself criminal, because he 
 ' has consented to the bad action, the commission 
 'of which he has permitted, and consequently 
 ' furnished a just reason of war. The two condi- 
 'tions above mentioned, I mean the knowledge 
 ' and sufferance of the sovereign, are absolutely 
 ' necessary, the one not being sufficient without 
 ' the other to communicate any share in the guilt. 
 ' Now it is presumed that a sovereign knows 
 ' what his subjects openly and frequently commit; 
 ' and as to his power of hindering the evil, this 
 ' likewise is always presumed unless the want of 
 1 itbe clearly proved." So Vattel :f "Si un souve- 
 'rain qui pourrait retenir ses sujets dans les 
 'regies de !a justice et de la paix souffre qu'ils 
 ' maltraitent une nation, ou dans son corps ou dans 
 ' ses rnembres, il ne fait pas moins de tort a toute 
 
 * 'Patientia et receptu. — 'Grot, and Heinecc* 
 fb.2, c. 6, s. 72.
 
 30 
 
 'la nation, que s'il la maltraitait lui-meme." In 
 order to apply these principles of Law to 
 the case before me, I am anxious, even at the 
 risk of wearying your Lordship by repetition, 
 to recapitulate in this place as briefly as possible 
 the facts which preceded the destruction of the 
 Caroline. Now that the British rebels found 
 ' reception * in the American territory, that they 
 there by ' sufferance' of the State — (whether 
 through the feebleness or intention of the American 
 Executive, matters not) — combined with a body of 
 American citizens long and well known by the 
 name of * sympathizers,' (which, translated into 
 English, means, ' abettors of the British con- 
 spirators against their government,) are asser- 
 tions proved by the ineffectual proclamations of 
 the American government, * telum imbelle sine 
 ' ictu,' and the remonstrances and statements of 
 the governor of Upper Canada. — By the fact, 
 that these citizens of the United States publicly 
 advertised in America for adventurers to enlist 
 with them, with the promise of parcelling out 
 the conquered province of Upper Canada among 
 their followers. By the fact, that for two whole 
 months the American state arsenals were openly 
 pillaged by these persons. And, lastly, by the 
 very eloquent fact, that after we had destroyed 
 the Caroline, and thereby dislodged the banditti 
 from Navy Island, their leader, an American, 
 Von Rensalaar, was arrested by the American
 
 31 
 
 authorities, who, at the same time, repossessed 
 themselves of some portion of the artillery of the 
 state. Who would recognize the case described by 
 the American President? " An outbreak on the 
 frontier, which neither (government) might be 
 able to suppress in a day," in these deliberate, long- 
 projected, un prevented preparations for overthrow- 
 ing the British government of the Canadas. # 
 
 Surely if ever a Government may be said vir- 
 tually and practically "to acknowledge their in- 
 ability to acquit themselves of their duty to 
 others," such an acknowledgment is to be found in 
 the state of anarchy and license which has been de- 
 scribed ; and can it be seriously contended by the 
 American Government — can it be meant by the 
 words "voluntarily to acknowledge," that such 
 frequent and flagrant outrages are neither to be 
 prevented nor punished by the injured nation, 
 until the Government of the offenders declares 
 in so many words its incapacity to discharge its 
 functions. Would the Law of Nations be really 
 based " on justice," and "the reason of the thing," 
 if it sanctioned so unjust and irrational a doctrine. 
 
 Vattel maintains a very different opinion : " 77 
 est certain que si mon voisin donnait retraite a 
 mes ennemis lorsqu'ils auraient du pire et se 
 
 * President's Message for 1841.— See Appendix. 
 
 * " Et cum Jus Publicum bifariam accipiatur vel de eo 
 1 jure quo ratione magistrd inter gentes obtinet" &c. &c. — 
 Bynkershoek, Quaestiones Juris Publici. Ad Lectorem.
 
 32 
 
 < trouveraient trop faibles pour mechapper, leur 
 ' laissant le temps de se refaire, et d'epier V occasion 
 1 de tenter une nouvelle irruption sur mes terres, 
 ' cette conduite, si prejudiciable a ma siirete et a 
 1 mes interets, serait incompatible avec neutralite. 
 
 * Lors done que mes ennemis battus se retirent 
 'chez lui, si la charite ne lui permet pas de leur 
 ' refuser passage et surete, il doit les faire passer 
 « outre le plus tot possible, et ne point souffrir 
 
 * quils se tiennent aux aguets pour mattaquer de 
 i nouveau ; autrement il me met en droit de les 
 1 aller chercher dans ses terres. C'est ce qui arrive 
 1 aux Nations qui ne sont pas en etat de faire res- 
 6 pecter leure territoir ; le theatre de la guerre s'y 
 4 etablit bientot ; on y marche, on y campe, on s'y 
 
 * bat comme dans un paysouvert a tous venants.'* 
 
 For the very delicate question, to which the 
 events of modern times have given rise, viz. as to 
 the precise time when colonies which have re- 
 nounced their allegiance to the mother-country, 
 shall be treated by foreign nations as independent 
 states; no direct solution is to be found in the law of 
 nations, for it was an event not contemplated by 
 any of the older publicists ; but the case has been 
 decided by the general analogy of the law, 
 that is to say, by the actual de facto establish- 
 ment of their independence. This was the case 
 of the Spanish Colonies in South America. ' It is 
 ' one question,' (said Mr.Canning,) ' whether the 
 
 * 1. iii. h. vii. sec. 133.
 
 33 
 
 ' recognition of the independence of the Colonies 
 1 shall take place, Spain being a party to such re- 
 'cognition; and another question, — whether Spain, 
 ' withholding what no poweron earth can necessarily 
 1 extort by fire, sword, or conquest, if she maintain 
 * silence without a positive refusal, — other coun- 
 1 tries should acknowledge that independence.' I 
 believe the United States did not delay the re- 
 cognition of the South American Republics till 
 the mother-country was pleased " to acknow- 
 ledge its inability." In both cases " the reason 
 of the thing " dictates that there is a virtual as 
 well as a literal confession of incapacity war- 
 ranting the otherwise illegal act of a foreign 
 state. 
 
 In 1826 that u casus fcederis " arose, which 
 induced Great Britain to send troops to Portugal : 
 it was held to be no excuse for the Spanish 
 Government that they had not formally autho- 
 rised the mustering and equipment of Portu- 
 guese rebels on the Spanish frontier ; it was 
 thought enough to justify us in a manifestation 
 of hostilities against Spain that she had suffered 
 Portuguese rebels to be armed and equipped in 
 her borders, and from thence to carry fire and 
 sword into Portugal. If the steam-vessel which 
 unconsciously conveyed the unhappy and mis- 
 guided Louis Bonaparte to the point of debark- 
 ation at which he begun his insane attempt 
 
 D
 
 34 
 
 had intentionally facilitated bis undertaking, 
 had landed him on a small island (if there 
 were any such) within gunshot of Boulogne, 
 crowded with English pirates and French rebels 
 preparing to invade France, and meanwhile con- 
 stantly firing upon the town, — if the vessel had 
 returned to Dover, and made sundry expeditions 
 to the island, sometimes laden with provisions, 
 and sometimes with artillery plundered in open 
 day from the castle at Dover, — and if the French 
 Government, having ascertained this to be the 
 fact, and that the whole line of British coast was 
 swarming with French refugees and British ad- 
 venturers congregated for the invasion of France, 
 and having obtained from the Cabinet of St. 
 James, nothing but public proclamations against 
 this state of intolerable anarchy ; — if, under these 
 circumstances, an officer in the employment of 
 the French Government, had boarded, captured, 
 and sunk the British steamer within cannon- 
 shot of the British shore — I cannot think any 
 American jurist would have held Great Britain 
 entitled to demand satifaction for the violation of 
 its territory, — I think he would have said to 
 those who were of this opinion, ' Why how long 
 ' was the French Government to wait for redress 
 • against such outrages ? till the remaining arsenal 
 c of the British Government had been ransacked ? 
 1 till the impunity of the vessel which supported
 
 35 
 
 ' the rebels liad encouraged others to engage in a 
 ' similar traffic ? and till additional atrocities 
 * would have required a more awful loss of life 
 ' and greater waste of property for their suppres- 
 sion ? Don't tell me,' he would have said, 'that 
 6 the British Government had never voluntarily 
 1 acknowledged their inability to acquit themselves of 
 i their duty ; here isa virtual acknowledgment — the 
 4 occasion says so for them, possibty they might 
 1 never chance to say so for themselves/ Now 
 the doctrine of the law T of nations, "neque alia 
 lex Romae alia Athenis," is well-known, and yet 
 this hypothetical case is a mirror to that of the 
 Caroline, except, indeed, that in this latter in- 
 stance, the necessity of self-defence and its corol- 
 lary prevention was more urgent, inasmuch as 
 the St. Lawrence is a boundary more easily* and 
 rapidly transgressed than the British Channel. 
 If a war had been recently concluded between 
 Great Britain and America by a treaty of peace, 
 and both parties were watching with anxious 
 eagerness for the slightest infraction of peace, 
 which might give a colour for the renewal of 
 hostilities, the conduct of Great Britain in the 
 affair of the Caroline would not have given a 
 pretext for war even to friends wishing to be 
 enemies. Vattel * expresses himself with his usual 
 * Vol. ii.p. 165, Vattel. 
 
 D 2
 
 36 
 
 clearness and more than his usual strength on 
 this point : * La juste defense de soi-meme ne 
 rompt point le traite de paix. C'est un droit 
 naturel auquel on ne peutreconcer et en promet- 
 tant de vivre en paix, on promet seulement de ne 
 point attaquer sans sujet, de s'abstenir d'injure 
 et de violence. Mais il y a deux manieres de se 
 defendre soi-meme, ou ses biens, quelquefois la 
 violence ne permit d'autre remede que la force, 
 et alors on en fait usage tresl egitimement. En 
 d'autres occasions, il y a des moyens plus doux 
 d'obtenir la reparation dudommage et de l'injure, 
 il faut toujours preferer ces derniers moyens. 
 Telle est le regie de la conduite, que doivent, 
 tenir deux nations soigneuses de conserver la 
 paix, quand il arrive que les sujets, de part ou 
 d'autre s'6chappent a quelque violence. La force 
 presente se repousse et se reprime par la force ; 
 mais s'il est question de poursuivrela reparation 
 du dommage et une juste satisfaction, il faut s'ad- 
 dresser au souverain des coupables, on ne peut 
 les ailer chercher dans ses terres, et recourir aux 
 armes que dans le cas d'un deni de justice. Si 
 Von a lieu de craindre que les coupables n'Schap- 
 pent ; si, par exemple, inconnus d'un pays voisin 
 on fait irruption sur nos terres, nous somme en 
 droit de les poursuivre chez eux a main armee 
 jusqua ce quils soient-saisis ; et leur souverain ne
 
 37 
 
 1 pourra regarder notre action que comme une juste 
 ' et legitime defense pourvu que nous ne commettions 
 1 aucune hostilite contre des innocents. 7 
 
 The concluding lines of this extract seem to 
 give an exact description of the state of affairs at 
 the time of the seizure of the Caroline. 
 
 Thecitations which have been made from thelaw 
 of nations will, I hope, have established the follow- 
 ing propositions — that the first duty of a state is to 
 take measures for its own security and preserva- 
 tion — that for the attainment of this object it may, 
 under peculiar circumstances, be justified even 
 in transgressing for the moment its territorial 
 limits — that these peculiar circumstances exist 
 when the neighbour's territory is suffered, whe- 
 ther from the inclination or feebleness of its 
 government, to become not merely the asylum of 
 the defeated foe, but a starting-place from which 
 he sallies forth with renewed vigour, fresh 
 resources, and increased numbers. The circum- 
 stances which I have stated would, according to 
 the law of nations, clothe a state, professing to 
 be neutral between two belligerents, with the 
 character of an enemy ; how much more strongly 
 (for I have purposely understated the case) thev 
 stamp such an impress on an ally which has 
 suffered itself to be the instrument of fugitive 
 traitors against the government of its friend, 
 must be obvious to every one. And, therefore,
 
 38 
 
 Vattel, speaking of the authority which a sove- 
 reign ought to exercise over his subjects, and of 
 his responsibility for their actions, remarks, 
 
 ' Et puisque celui-ci ne doit point souffrir que 
 c ses sujets molestent les sujets d'autrui, ou leur 
 'fassent injure boucoup moins qu'ils offensent 
 ' audacieusement les puissances etrangeres, il doit 
 'obligerle coupable a reparer le dommage, ou 
 ' l'injure, si cela se peut, ou le punirexemplaire- 
 
 * ment, ou enfin, selon le cas et les circonstances, 
 
 * le livrer a 1'Etat offense pour en faire justice. 
 ' C'est ce qui s'observe assez generalement a 
 < Fegard des grands crimes, qui sont egalement 
 ' contraires aux lois cle surete de toutes les nations. 
 1 Les assasins, les incendiaires, le voleurs sont 
 ' saisis partout a la requisition du souverain dans 
 ' les terres de qui le crime a ete commis, et livres 
 1 a sa justice. On va plus loin dans les Etats qui 
 ' ont des relations plus etroites oVamitie, et de bon 
 5 voisinage.' # 
 
 If then the statement of facts given in these 
 pages be correct, it will appear to all who are con- 
 versant with the principles of International Law, 
 that far from invading the rights of another 
 nation, Great Britain has magnanimously for- 
 borne to exercise the " summum jus," to which 
 
 * The American jurist Mr. Chancellor Kent carries this 
 doctrine to its fullest extent. Kent's Commentaries, vol. i. 
 p. 24, lecture ii.
 
 39 
 
 by that law she was entitled. She might have 
 said to the United States, Inasmuch as you have 
 not only opened an asylum to the deadliest 
 enemies of your ally, but inasmuch as in your 
 bosom they have concerted their plots against 
 our life, and armed with your weapons, strength- 
 ened by the adherence of many, and actually 
 under the generalship of one of your citizens, 
 they have carried fire and sword into our country ; 
 you have given us a specific definite cause 
 for war, known and acknowledged by the law of 
 nations, and we will inflict upon you its retri- 
 butive justice until you make reparation for 
 these outrages. * But Great Britain saw that the 
 American government did not entertain any 
 hostile animus towards her — that these violations 
 of right were committed, not in consequen.ce, but 
 in spite of their commands; that the feebleness, 
 and not the mala fides, of the American Executive 
 suffered her citizens to set at nought with im- 
 punity her public proclamations. Great Britain 
 felt that under these circumstances it would be 
 an ungenerous part to exercise her extreme right 
 
 * " Eorum qui a bello abstinent officium est nihil facere, 
 quo validior fiat is, qui improbam foret causam, aut quo jus- 
 tum bellum gerentis motus impediantur." — Grotius de Jure 
 Belli et Pacis, 1. iii. c. xvii. s. 3. 
 
 " Quomodocunque enim alteri contra alterum succur- 
 ramus, bello nos inter ponimns, quod salva amicitia non 
 licet." — Bynkershoek Quaestiones Juris Publici, I. i. c. ix.
 
 40 
 
 against a nation to whom she was bound by no 
 common ties of amity ; she trusted that this de- 
 fect in their constitution (a defect which, as it 
 leaned to the excess of freedom, she must regard 
 with an indulgent eye) would induce her legis- 
 lature to administer the proper remedy, and she 
 contented herself with only taking such steps as 
 were absolutely necessary for her own security. 
 Such conduct was worthy of a great and gene- 
 rous nation ; she might reasonably have hoped 
 that it would be so considered by the United 
 States. 
 
 But that a nation so leniently treated should 
 formally complain of a violation of her strict 
 territorial rights, recalls to our recollection the se- 
 vere comment of Tacitus on the abused asyla of 
 the Greek temples, in which the outcasts of so- 
 ciety found shelter from punishment, and pre- 
 pared for the perpetration of new infamies : 
 " Complebantur templa pessimis servitiorum eo- 
 dem subsidio obserati adversus creditores, sus- 
 pectique capitalium criminum receptabuntur, 
 nee ullum satis validum imperium erat coercendis 
 seditionibus populi flagitia homlnum ut ccerimonias 
 Deiim protegentis." 
 
 I have said that Great Britain exercised a 
 wise magnanimity in forbearing, under the cir- 
 cumstances, to exact the full reparation to which 
 her wrongs entitled her. I think so, because her
 
 41 
 
 honour (which it must be remembered is the se- 
 curity of nations) was in no wise tarnished. 
 
 I wish the same opinion could be expressed 
 with respect to the next injury, intimately con- 
 nected with the foregoing circumstances, which she 
 sustained at the hands of the United States — I 
 mean the trial of Mr. Macleod. The particulars 
 of this case have obtained too melancholy a noto- 
 riety to need more than a brief statement in 
 this place. This gentleman, some time subse- 
 sequent to the transactions related in these 
 pages, was arrested in the State of New York 
 on a charge of murdering a man of the Caro- 
 line, who was cut down while resisting the 
 attack of Captain Drew. The British govern- 
 ment, on receiving intelligence of his arrest, 
 notified to the government of the United States 
 that the seizure of the Caroline was a national 
 act ordered and sanctioned by the government, 
 and, consequently, for which, according to 
 every principle of law ever yet heard of, the 
 British Government was alone responsible. 
 
 The American Executive demanded the trans- 
 fer of the case from the court of New York to 
 the Federal judiciary, (whether with the intention 
 of releasing the prisoner or not is immaterial,) 
 the court refused its application, and after many 
 months' confinement in prison, with the peril of 
 death impending over him, Mr. Macleod was
 
 42 
 
 brought to trial and finally acquitted ; not because 
 the seizure of the Caroline was an act of the British 
 government and not of the individual, but be- 
 cause Mr. Macleod was not present at or con- 
 cerned in the event. Of course, the fact and 
 grounds of the acquittal can in no way affect the 
 question of this grievous violation of the Law of 
 Nations- — for such in truth it is. It is long since 
 Christendom has seen an act more unjust in its 
 theory, or more pernicious in its consequences. 
 Its theory is, that the subject is individually re- 
 sponsible for being the instrument of executing 
 the commands of his lawful sovereign — a theory 
 repudiated by every moralist, publicist, or states- 
 man of every civilized land ; its consequences 
 must be, to keep perpetually alive the most exa- 
 cerbated feelings of hostility, to necessitate con- 
 tinual war on the part of the state in defence of 
 its subject, and to replunge nations into that bar- 
 barity of feudal times, for their deliverance from 
 which they were mainly indebted to the adoption 
 of those wise and just principles of jurisprudence 
 which consider the act of the subject executing 
 the orders of his sovereign as matter of adjust- 
 ment between the governments of states, and not 
 of personal vengeance against the individual. 
 Let us suppose that war had been promulgated 
 between the United States and Great Britain at 
 the time of the seizure of the Caroline ; that a
 
 43 
 
 treaty of peace had been subsequently concluded 
 between the belligerent parties ; and that, after 
 the conclusion of such treaty, the arrest and trial 
 of Mr. Macleod had taken place. Such a 
 glaring atrocity would require only to be stated 
 to be condemned, and yet the principle is 
 the same in the hypothetical case, as in that 
 which has actually occurred. Great Britain 
 forbore to execute her "summumjus" of war, 
 but self-defence gave her, pro tanto, belligerent 
 rights ; and the recognition by her government 
 of the capture of the Caroline invested those 
 concerned in that act with precisely the same 
 character as if they had been the servants of a 
 belligerent country. 
 
 Our minister at Washington should have been 
 directed, I must think, to demand his. passport 
 the very moment the liberation of Mr. Macleod 
 had been refused. It must ever seem to me 
 that the ruling powers of Great Britain aban- 
 doned, in this instance, the most sacred obliga- 
 tion of a government, the protection of an in- 
 nocent subject, and forgot what was due to 
 national honour and security, when they ab- 
 stained from taking so just and so necessary a 
 measure. 
 
 A regard to truth, a deep veneration for the 
 guardian principles of society, extorts from me 
 this reluctant avowal. Nevertheless, I must ob- 
 serve that what it behoved Great Britain to have
 
 44 
 
 done six months ago, and what it may become 
 her to do now, form the subject of very different 
 considerations. The peril which threatened the 
 life of her subject has passed away, and the 
 recent Message of the President gives other na- 
 tions, (and all are equally interested in this 
 matter,) reason to hope that by some * modifica- 
 tion of her internal constitution, she is about to se- 
 cure the civilized world against the recurrence of 
 such an injury ; this would be a substantial repa- 
 ration for what I verily believe was an involun- 
 tary wrong ; and it would be, I earnestly hope, an 
 unmerited insult to her national character to 
 suppose that she would refuse to accompany an 
 act acknowledged by her to be one " of pro- 
 priety "f and u necessity," with expressions of 
 
 * De Tocqueville seems to have thought such a provision 
 already existed. See his chapter " Differents cas de Juris- 
 diction." " La personne et la matiere devinrent done les 
 deux bases de la competence federale. Les ambassadeurs re- 
 presented les nations amies de l'Union ; tout ce qui inte- 
 resse les ambassadeurs interesse en quelque sorte l'Union 
 entiere. Lorsque un ambassadeur est partie dans un proces 
 le proces devient une affaire qui touche un bien-etre de la 
 nation — il est naturel que ce soit en tribunal federal qui pro- 
 nonce." — La Democratic en Amerique, torn. i. p. 267. See 
 also Kent's Commentaries, vol. i., part ii., lecture 14. 
 
 + " In cases of this kind a government becomes politi- 
 cally responsible only when its tribunals of last resort 
 are shown to have rendered unjust and injurious judg- 
 ments in matters not doubtful. (! !) "I cannot fail, how- 
 ever, to suggest to Congress the propriety, and in some
 
 45 
 
 regret for the evil which the want of it had 
 hitherto occasioned. 
 
 It is not my intention to do more than refer to 
 the other objects of your Lordship's mission. The 
 boundary question has been already treated with 
 great ability, and a thorough knowledge of 
 the subject in another publication,* and as it 
 seems to be confessed on all sides, that the pro- 
 visions of the original treaty are impracticable, 
 there can be little doubt that two friendly coun- 
 tries will agree de novo y upon such a line of 
 demarcation as may satisfy the fair claims of both 
 to the security of their frontiers. The more 
 delicate and difficult question relating to the right 
 of Great Britain to ascertain the sincerity of the 
 flag, admitted by the American ministers to be 
 often fraudulently assumed for the purposes of 
 screening guilt from detection and punishment — 
 the right of Great Britain to prevent her subjects 
 from violating her own laws by an additional 
 violation of those of the United States, is fully 
 
 degree the necessity, of making such provisions by law, so 
 far as they constitutionally may do so, for the removal, at 
 the commencement, and at the option of the party, of all such 
 causes as may hereafter rise, and which may involve the 
 faithful observance and execution of our inter?iational obli- 
 gations, from the state to the federal judiciary." — Message of 
 American President for 1841. 
 
 * See the articles in the Quarterly Review for March and 
 December, 1841.
 
 46 
 
 discussed in the correspondence of the courts of 
 St. James and Washington, recently laid before 
 the public. But I cannot refrain from observing 
 that, though I do not yield to Mr. Stevenson in 
 admiration for that masterpiece of judicial elo- 
 quence the case of " Le Louis," yet Lord Stowell's 
 judgment is not exactly applicable to the present 
 question. Lord Stowell in that case reversed the 
 sentence of a Vice-Admiralty Court which had 
 condemned a French ship for being employed in 
 the slave trade, and for forcibly resisting the right 
 of search claimed by the British cruisers. We do 
 not claim a right to search American vessels for 
 the purpose of ascertaining whether or not they 
 have slaves on board, nor the right of condemning 
 them and liberating the wretched objects of 
 such unholy traffic, if it prove to be the case. 
 We claim only to verify the fact that they are 
 American and not British traders, or belonging to 
 one of the Powers with whom we have a specific 
 treaty, conferring on us the belligerent right 
 which we do not pretend to exercise towards 
 America ; and as Mr. Stevenson admits that we 
 are entitled to ascertain that such parties do not 
 violate the law, it is difficult to see how he can 
 deny us the only means of doing so. It seems as 
 little reasonable as to say, " This spot of ground 
 may be yours, in which case you may exercise 
 over it the full rights of a proprietor, but its pre-
 
 47 
 
 sent occupier asserts that it is ours, and we deny 
 your right to examine into the truth of his asser- 
 tion.^ Surely, according to every principle of 
 reason, it would seem that a party interested in 
 the observance of a law, should have the means 
 of ascertaining the fact of its violation. 
 
 I cannot believe that the United States will 
 continue to exhibit their policy to the rest of the 
 world, as alone among the nations of Christendom 
 opposing a technical obstacle to the achievement 
 of an unspeakable good, and the destruction of a 
 frightful evil which she has herself repeatedly 
 and vehemently denounced. I feel confident that 
 the North American republic will be convinced 
 that to present the spectacle of so discreditable 
 an anomaly to all other christian communities, 
 is far too dear a price for the maintenance of a 
 point of etiquette, and is inconsistent with the 
 dignity and character of a great nation. 
 
 With these observations, my Lord, I will close 
 my remarks on the questions of international law, 
 which are now pending between this country and 
 the United States of America, and which have 
 given rise to your Lordship's embassy. I should 
 much regret if these observations had any other 
 tendency than to facilitate, in however feeble a 
 degree, the success of that mission. It is as far from 
 my intention as it is beyond my power to sound 
 " the blast of war" upon this occasion. I have not
 
 48 
 
 endeavoured to blow the trumpet, or to deserve the 
 epitaph of Misenus. It seemed to me that a calm 
 investigation both of the facts relating to the cap- 
 ture of the Caroline, (the principal subject of re- 
 monstrance in the Message of the American 
 President,) and of the principles of public law ap- 
 plicable to these facts, would materially contribute 
 to close the breach between the United States of 
 America and Great Britain. Neither nations 
 nor individuals are disarmed by being disen- 
 cumbered of their passions ; and I thought that 
 if the result of such an investigation should de- 
 monstrate, as I humbly hope it has done, that 
 England has conducted herself with singular 
 forbearance and moderation under circumstances 
 of no ordinary provocation towards her kinsfolk 
 in the other hemisphere, that her ambassador 
 would be entitled to a favourable hearing at Wash- 
 ington, and that your Lordship's hands would 
 be strengthened for the conciliatory purposes of 
 your mission. And here I must observe, that 
 your Lordship's appointment itself is not the least 
 among the many evidences of the feelings of 
 amity, respect, and goodwill entertained towards 
 America by this country. That nation is held 
 in no light estimation to whom we send, as the 
 harbinger of reconciliation, the chief of the 
 Medici of our country — the possessor of high 
 rank and great wealth, versed in the adminis-
 
 49 
 
 tration of public affairs, necessarily imbued with 
 the principles of commutative justice, habituated 
 to the speculative consideration and practical 
 knowledge, under its most extensive and various 
 bearings, of the commerce which links together 
 the scattered nations of the globe ; well aware, 
 therefore, of the inestimable blessings of peace, 
 and of the delusive splendour and lasting evils 
 of war. 
 
 That your Lordship's mission may be successful 
 — that Great Britain and the United States may 
 remember the strength of the ties which bind 
 them together — that they may recollect that it 
 is their high calling to show to the other nations 
 of the world the steady beacon of an enduring 
 and rational liberty —that they may feel the in- 
 divisible unity of their true interests, and that 
 the only rivalship which becomes them is to pro- 
 voke each other to an emulation in every art, 
 science, and institution, which may promote the 
 moral greatness of a free people, 
 
 " As if a brother should a brother dare," 
 
 is, my Lord, the earnest prayer, of 
 
 Your Lordship's obedient servant, 
 
 Robert Phtllimore. 
 
 E
 
 APPENDIX, 
 i. 
 
 Sir F. B. Head to Lord Glenelg. 
 
 " 1 need not on this continent declare that the Ame- 
 ricans are a people with whom the British empire for 
 many years has assiduously cultivated the most friendly 
 connexion. Our government has looked upon them as 
 its allies ; our people have intimately connected them- 
 selves with their commerce ; our capital has irrigated 
 their land; unlimited credit has been fraternally ex- 
 tended to them, with that unsuspecting confidence which 
 in the civilized world is reposed in men of character and 
 truth ; we have rejoiced in their success, and we have 
 done all that a generous nation could do to save them 
 from the expense and misery of war. It is true we were 
 once opponents, but the hatchet of war has long been 
 buried, and I must own I had hoped that the spirits of 
 our mutual ancestors were sacredly guarding its tomb. 
 
 " Such are the feelings of the British people towards 
 the Americans, and yet, I regret to inform you, that, in 
 a moment of profound peace and of professed friendship 
 a considerable number of Americans, regardless of the 
 
 e 4 2
 
 52 
 
 crimes committed, as well as of the degraded character 
 of the man, have sympathised with the principal rebel,, 
 who has lately absconded as a criminal from our land. 
 I regret to inform you that American citizens of in- 
 fluence and great wealth have come forward to coerce 
 the brave and independent people of Upper Canada to 
 change laws and institutions which they have lately, by 
 open and almost universal suffrage, publicly declared 
 that they prefer. 
 
 " The American press has, to my astonishment, in 
 many instances advocated this flagrant act of injustice ; 
 and such has been the popular excitement, that not only 
 has a body of Americans, headed by American leaders, 
 within a few days taken possession of Navy Island, 
 (which belongs to the British empire,) but a proclama- 
 tion has just been issued from this spot declaring that 
 the standard of liberty is planted in Canada ; that a pro- 
 visional government is established there; that a reward 
 of 500/. is offered for my apprehension ; that 300 acres 
 of her Majesty's lands will be freely bestowed by this 
 provincial government upon any volunteer who shall 
 personally assist in invading our freedom ; and it is 
 added, that 6 Ten millions of these lands, fair and fertile, 
 will speedily be at their disposal, with the other vast 
 resources of a country more extensive and rich in 
 natural treasures than the United Kingdom or old 
 France.' 
 
 " I am informed that Americans from various quar- 
 ters are hastening from the interior to join this standard 
 of avowed plunder and revolt, that cannon and arms are 
 publicly proceeding there ; and under these circum- 
 stances, it becomes my painful duty to inform you, that
 
 r. 
 
 3 
 
 without having offered to the United States the smallest 
 provocation, without having entertained the slightest 
 previous doubt of the sincerity of American alliance, the 
 inhabitants of this province may in a few days be called 
 upon by me to defend their lives, their properties, and 
 their liberties, from an attack by American citizens, 
 which, with no desire to offend, 1 must pronounce to be 
 unparalleled in the history of the world. 
 
 " Upon the courage and resolution of the Canadian 
 people I place the firmest reliance ; and if this unwar- 
 rantable invasion should proceed I know I shall not in 
 vain require every British subject coolly to perform that 
 duty to his country which his own pride, spirit, and 
 feelings will spontaneously suggest. 
 
 " The interference of foreigners in the domestic 
 policy of a free country is an aggression which no nation 
 of character can ever submit to endure (especially where 
 a band of people, violating their own laws, our. laws, 
 as well as the sacred obligations of national amity, in- 
 trude themselves upon peaceable inhabitants lawlessly 
 to advocate by force of arms the practical blessings and 
 advantages of republican institutions, which, by their 
 own showing, have at least ended with them in anarchy 
 and plunder ;) and as every country is a natural fortress 
 to its inhabitants, as every village is a strong military 
 position, and as every bridge and ravine can be advan- 
 tageously defended, I must own that, deeply as I should 
 lament a conflict of this nature, I entertain no feeling of 
 anxiety for the result. The peaceful inhabitants of 
 Upper Canada will not be left to defend their country 
 alone, for they belong to an empire which does not 
 suffer its subjects to be injured with impunity; and if a
 
 54 
 
 national war, which it rests with the American govern- 
 ment to avert, should be the unhappy consequence of an 
 intolerant invasion of our freedom, the civilized world, 
 while it sympathizes with our just cause, will view with 
 feelings of astonishment and abhorrence this attempt of 
 a body of American citizens treacherously to attack and 
 plunder, in a moment of profound peace, their oldest, 
 their most intimate, and their most natural ally. 
 
 "A few days will, I trust, demonstrate that the Ameri- 
 can government wants neither the will nor the power to 
 control its people. If otherwise, the defensive course 
 which the inhabitants of Upper Canada must be called 
 upon to adopt is plain and clear. 
 
 " In the meanwhile, however, it is but justice to the 
 American nation to allow them, notwithstanding our 
 territory has been already invaded by their citizens, the 
 opportunity of nobly vindicating, as I firmly believe they- 
 will, the integrity of their government and institutions ; 
 and I have to inform you that, with this peaceful object 
 in view, I have communicated with the governor of the 
 state of New York, with whom I have hitherto been on 
 the most friendly terms, as also with her Majesty's 
 minister at Washington ; and awaiting their replies, I 
 have reinforced the gallant militia of the frontier by a 
 strong corps of observation, and have made arrange- 
 ments for a general call upon the militia, in case their 
 services should unfortunately be required."
 
 a 
 
 55 
 
 II. 
 
 Sir F. B. Head to Lord Glenely. 
 
 " Toronto, 9th February, 1838. 
 
 My Lord, 
 
 " In my despatch of the 10th of January, which con- 
 tained a copy of my communication to Mr. Fox at 
 Washington respecting the capture of the piratical 
 steam-boat Caroline, I had the honour to mention to 
 your lordship, that in justice to Captain Drew of her 
 Majesty's Royal Navy, and the other officers and men 
 engaged in the service alluded to, I should feel it my 
 duty to bring their conduct before the especial attention 
 of her Majesty's government. 
 
 " It is proper, however, I should previously inform 
 your lordship, that as soon as I found that this portion 
 of the British empire was perfidiously attacked and in- 
 vaded by American citizens under American leaders 
 termed 'generals;' that artillery and muskets were 
 brought against us from the state arsenals ; that Navy 
 Island, belonging to her Majesty, was actually seized by 
 Americans ; that batteries were formed there, from 
 which shot were fired for many days upon the inoffensive 
 inhabitants of this province, and that the island was re- 
 gularly supplied by boats from the American shore with 
 provisions and munitions of war, I approved of the re- 
 commendation of Colonel Macnab, commanding the ex- 
 pedition of the Niagara frontier, that a naval force or 
 flotilla under officers of experience should be consti- 
 tuted ; and feeling it would be unjust that in the name 
 of her Majesty I should require naval officers to leave 
 the backwoods into which they had retired without re- 
 cognizing them in the professional capacity in which I
 
 56 
 
 had especially called them into action, I directed my 
 military secretary, Colonel Strachan, to forward to 
 Colonel Macnab a written communication, a copy of 
 which is herewith enclosed, directing him to call upon 
 such naval officers in the province as he might deem 
 proper to select, to afford me their services, on the un- 
 derstanding that they would receive their full pay during 
 the period they were thus publicly employed by me on 
 her Majesty's service. 
 
 " In consequence of the above communication (which, 
 I at once think it right to acknowledge, contains no 
 authority beyond what the lords of the admiralty may, 
 from the emergency of the case, deem it proper to con- 
 firm to it,) Colonel Macnab called upon Captain Drew, 
 R.N., to collect and command a flotilla of gunboats and 
 other craft, to be immediately fitted out for the purpose 
 of attacking Navy Island. 
 
 " While the gunboats were being prepared the Ame- 
 rican force under the American commander, styling 
 himself General Van Ranzalaer, continued day after 
 day to fire from Navy Island upon the unoffending in_ 
 habitants of the Niagara frontier, although not a gun 
 had been fired on the part of the British, although the 
 American forces on our island were daily increasing, and 
 although a steam-boat chartered by these pirates was 
 actually employed in transporting to the island munitions 
 of war for the purpose of aggravating the insult which, 
 in a moment of profound peace, had perfidiously been 
 made by American citizens upon her Britannic Ma- 
 jesty's dominions. 
 
 " Under these circumstances Colonel Macnab deter- 
 mined, as an act of self-defence, to call upon Captain 
 Drew to capture, burn, or destroy this steam-boat.
 
 57 
 
 " Accordingly, about eleven o'clock of the same night 
 ( ) Captain Drew, with five boats containing nine 
 
 men each, pushed off from the British shore. The 
 boats were commanded by Captain Drew, R.N., Lieu- 
 tenant Mac Cormack, R.N., Lieutenant John Elmslie, 
 
 R.N., Lieutenant Christopher Beer, R.N., and 
 
 Gordon, a commander of a steam-boat. 
 
 " The crew were composed of volunteers who em- 
 barked in total ignorance of the service in which they 
 were about to be engaged, Captain Drew's requisition 
 having merely stated, that he wanted a few fellows with 
 cutlasses 'who would follow him to the devil.' 
 
 " As soon as they were clear from the shore, Captain 
 Drew ordered his followers to rest for a few moments on 
 their oars, and while the current was hurrying them to- 
 wards the Falls of the Niagara, which were immediately 
 below them, he briefly explained to the crews the duty 
 he required them to perform, and the post respectively 
 to be assigned to each. Silence was then preserved 
 until Captain Drew's boat came within fifteen yards 
 of the steamer, (which was obscurely seen moored to 
 the wharf at Fort Schlosser,) when the sentinel on 
 board in a hurried manner called out, ' Boat ahoy ! 
 boat ahoy ! who comes there V 
 
 " A man in the leading boat replied, ' Friend,' on 
 which the sentinel called for the counter-sign ;' ' Til 
 give it you when we get on board,' replied Captain 
 Drew, who by this time being close to the vessel 
 boarded her on the starboard gangway, and from an 
 over-anxiety in his crew to follow him, it so happened 
 that for more than a minute he was the only assailant on 
 the pirate's deck. Captain Drew there encountered five
 
 58 
 
 men, one of whom fired his musket close to his face ; 
 but missing, he (Captain Drew) immediately cut him 
 down. Captain Drew then disabled another of the 
 pirates, and with the flat of his sword driving the other 
 three before him, occasionally hastening them with the 
 point, he made them step from the vessel to the wharf. 
 
 " By this time Lieutenant Mac Cormack had boarded 
 the starboard bow, and it being so dark that he could 
 not recognize the men he found there, he asked them 
 6 if they were friends or enemies V One of them replied, 
 6 An enemy,' and immediately firing, shot him through 
 the left arm ; Lieutenant Mac Cormack, instantly cut 
 this man down. Several of the pirates then fired upon 
 Lieutenant Mac Cormack and wounded him in five 
 places ; yet in spite of this he effectually disabled an- 
 other of them, and then sinking from loss of blood, the 
 vessel was carried, when Captain Drew immediately 
 ordered a party of his men to cast her off. It was, how- 
 ever, found that she was moored to the wharf by chains 
 from the bow and quarter, which it required nearly fif- 
 teen minutes to unloose. 
 
 " During this delay the American guard stationed at 
 the inn above Fort Schlopen turned out and commenced 
 firing upon the assailants ; in consequence of this Lieu- 
 tenant Elmslie, R.N., heading a volunteer party of 
 sixteen men, armed with nothing but their cutlasses, ad- 
 vanced about thirty yards towards them, and forming in 
 line, they gallantly stood there to protect the vessel 
 against the American riflemen until the chain cables 
 were cast off. 
 
 M The crews now retiring to their respective boats, 
 towed the vessel from the wharf, but the current irrevo-
 
 59 
 
 cably drifting her towards the Falls of Niagara, Captain 
 Drew, assisted by one man, set her on fire, and as soon 
 as she was fairly towed into the stream, the assailants, 
 finding she was more than they could hold, let her go, 
 and giving her three British cheers, they rapidly pulled 
 away for their own shore, while the steamer slowly 
 glided towards her doom. 
 
 " A small light glowing within her suddenly burst 
 from her hold, and in a few minutes the pirate vessel, 
 enveloped in flames, was seen hurrying towards the 
 Rapids, down which she hastily descended, until reach- 
 ing the Crest of the great Horse-shoe Falls, over she 
 went. 
 
 " Your lordship will imagine better than it is possible 
 to describe the solemn magnificence of this spectacle, 
 yet it does not exceed the moral picture exhibited at the 
 capture of the vessel. 
 
 " The justness of the cause, the noble project of the 
 attack, the coolness with which it was executed, and, 
 lastly, the mercy that was shown by our brave fellows 
 the moment the vessel was their own, are naval charac- 
 teristics which reflect honour on the British empire in 
 general, and on this noble province in particular. 
 
 " I therefore feel it my duty to request your lordship 
 to lay my humble testimony of the merits of Captain 
 Drew (whose intrepidity and generosity are beyond all 
 praise) before the lords commissioners of the Admiralty, 
 to whose liberal consideration I beg leave most earnestly 
 but respectfully to recommend him. 
 
 " I also feel it my duty to bring before their lordships' 
 especial consideration the case of Lieutenant Mac 
 Cormack, who is still lying on his back completely dis-
 
 60 
 
 abled ; and I much fear that one of his five wounds will 
 require the amputation of his left arm. 
 
 " This loss to a backwoodsman, upon whose manual 
 labour his family is dependent for support, is irreparable; 
 and I feel confident that her Majesty's government will 
 consider that as it is highly advantageous that the Queen 
 should be enabled to call upon the retired naval officers 
 in this province, whenever their professional services on 
 the Lakes may suddenly be required, so it is not only 
 just but politic, that if disabled they should not be 
 allowed to suffer from privations, which might tend to 
 deter others from following their noble and patriotic 
 example. 
 
 " Although naval or military officers, when called 
 upon by their government, are in no way responsible for 
 the political consequences of the daring measures they 
 are ordered to effect, yet I cannot help assuring your 
 lordship that the capture of the Caroline has been pro- 
 ductive of the most beneficial consequences. 
 
 " Before it took place, American ; sympathy ' for our 
 absconded traitors was unbridled and unchecked. 
 
 " The state arsenals were openly plundered, subscrip- 
 tions were openly collected, provisions as well as muni- 
 tions of war were openly supplied; and while her Ma- 
 jesty's government in Upper Canada was subjected to 
 enormous expenses, and while the unoffending inhabi- 
 tants .of this province were kept in a state of painful 
 anxiety, the inhabitants of the American frontier were 
 actually amusing themselves at our sufferings, and were 
 even making parties of pleasure for the purpose of in- 
 specting the preparations on Navy Island. 
 
 " No sooner, however, was the Caroline in flames
 
 61 
 
 than a sudden excitement prevailed, but it was the ex- 
 citement oifear. The women fled from the villages on 
 the coast, people who had fancied themselves bed-ridden 
 decamped, and the citizens of Buffalo evinced the 
 greatest possible consternation for the safety of their 
 town. 
 
 " Immense expenses were immediately incurred by 
 the Americans for the purpose of self-defence ; and con- 
 sidering how much Upper Canada had been obliged to 
 expend on this principle, I trust your lordship will admit 
 that it was salutary, politic, and above all, just, to make 
 our American allies participate in the lamentable conse- 
 quences of their own perfidy towards us. 
 
 " Of course there were not wanting those who argued 
 that the excitement produced by this bold act of justice 
 would irritate our assailants. However, it may be ob- 
 served that it is impossible to make war palateable to 
 one's enemy, and that indeed it is not advisable it should 
 be so. 
 
 " The result has now spoken for itself. The 
 pirates have fled from Navy Island; their plan of in- 
 vading the Niagara frontier has been abandoned, and 
 our allies, arrantly ashamed of themselves, are now 
 merely our enemies from that odd principle in human 
 nature which invariably makes men hate and envy those 
 whom their consciences tell them they have injured. 
 
 " Our militia forces on the frontier have nearly all 
 been allowed to retire to their homes ; but as the flotilla 
 of boats requires to be guarded, and as I think it highly 
 adviseable that some officer of experience should watch 
 the naval movements of the Americans, 1 have directed 
 Captain Drew, by two orders, (copies of which are here-
 
 62 
 
 with enclosed,) to continue his pendant flying until I 
 shall have had time to communicate to your lordship. 
 
 " As the expense of this precautionary observation 
 will be very trifling, I would strongly recommend that it 
 should be continued for at least a year ; for as several 
 vessels are now building on the Lake, it would be pru- 
 dent that we should have some one whose duty it is to 
 ascertain whether any suspicious alteration is effected in 
 their structure. 
 
 { * Trusting that your lordship will offer to the lords 
 commissioners of the Admiralty my apology in case I 
 should have given any orders they may see reason to 
 disapprove of, and that you will be so good as to lay be- 
 fore them Colonel Macnab's recommendation in favour 
 of Lieutenant Elmslie, a member of my executive 
 council, to whose intrepidity I can myself bear tes- 
 timony, 
 
 " I have, &c. 
 (Signed) " F. B. Head. 
 
 " The Right Hon. Lord Glenelg, 
 &c. &c. &c." 
 
 III. 
 
 Speech of Sir F. B. Head to the Legislative Council 
 
 at Toronto* 
 
 " Honourable Gentlemen, and Gentlemen, 
 " I regret to say that there still exists among a por- 
 tion of the American people so strong a desire to force 
 upon the free inhabitants of this province republican 
 institutions, that with scarcely an exception every Go-
 
 63 
 
 vernment arsenal from Lake Champlain to Lake Michigan, 
 has within the last two months been broken open and 
 plundered, to furnish arms for the invasion of this por- 
 tion of the British Empire ; and however the circum- 
 stance may be explained, it is certainly a remarkable 
 fact that all these robberies have been effected withou* 
 the sacrifice of a single life, and without even the im- 
 prisonment of the person who is notoriously the instiga- 
 tor of these acts. 
 
 "The wrong which citizens of the neighbouring 
 states have committed, by thus attempting to dictate 
 to the inhabitants of Upper Canada the form of govern- 
 ment under which they are henceforward to exist, will, as 
 the assertion of a new theory, be condemned by the 
 civilized world as severely as in practice it has been re- 
 pudiated by the people of this province. 
 
 " What right, it will be calmly asked, have the in- 
 habitants of one country, armed with the artillery and 
 weapons of their Government, to interfere with the 
 political institutions of another? What excuse, it will 
 be gravely considered, had citizens of the United States 
 for invading the territory of Upper Canada ? 
 
 " When our coloured population were informed that 
 American citizens, sympathising with their sufferings, 
 had taken violent possession of Navy Island, for the 
 double object of liberating them from the domination of 
 British Rule, and of imparting to them the blessings 
 of republican institutions, based upon the principle that 
 all men are born equal, did our coloured brethren 
 hail their approach? — No! on the contrary, they has- 
 tened as volunteers in wagon loads to the Niagara 
 frontier to beg from me permission, that in the intended
 
 64 
 
 attack upon Navy Island, they might be permitted to 
 form the forlorn hope; in short, they supplicated that 
 they might be allowed to be foremost to defend the glo- 
 rious institutions of Great Britain. 
 
 " When the mild aborgines of this continent, who 
 live among us uninjured aud respected, were informed 
 that citizens of the United States, disregarding the 
 wampum belt which was sacredly connecting them with 
 Great Britain, had invaded our shores to sympathise 
 with the sufferings of the red tenants of the forest, and 
 to offer them American friendship instead of the en- 
 mity of British rule, did our Indian brethren hail their 
 approach? No; their chiefs and warriors instantly 
 painted their faces for battle, and with rifles in their 
 bands these free-born defenders of their native soil ap- 
 peared before me with a solitary request, namely, that 
 in case of their death, their wives and children might 
 be pensioned. The Six Nations, Indians, the Missisa- 
 guas, the Chippewas, the Hurons, and the Ottawas, 
 spontaneously competed with each other in a determi- 
 nation to die, if necessary, in defending the British Go- 
 vernment, under whose parental protection they and their 
 fathers had been born. 
 
 " When the Canadian farmers and yeoman of British 
 origin were informed that citizens of the United States, 
 sympathising with their sufferings, had in three in- 
 stances taken forcible possession of her Majesty's terri- 
 tory, for the purpose of liberating them from British 
 domination ; that with this object in view the American 
 leaders had issued proclamations, promising to each 
 liberator three hundred acres of the best lands of 
 Upper Canada, with one hundred dollars in silver ;
 
 65 
 
 that the American self-styled general in command of 
 the liberators had called upon the citizens of Upper 
 Canada ' to free their land from tyranny f ' to rally 
 round the standard of liberty, 7 Ho lay down their 
 arms, in which case it was beneficently promised to 
 them that 'that their persons and property should be 
 protected,' and that if they would * cease resistance all 
 would be well with them •' — did the Canadian inhabi- 
 tants hail their approach ? No ; on the contrary, their 
 brave and loyal militia, although totally deprived of the 
 assistance of her Majesty's regular troops, rose simul- 
 taneously, and, regardless of every private considera- 
 tion, wherever the invaders appeared thousands of 
 bayonets were seen bristling on our shore ready to re- 
 ceive them. On the eastern, as well as on the western 
 frontier, but one feeling prevailed ; it was a noble deter- 
 mination on the part of free men to conquer or die 
 in the defence of their religion, their constitution, their 
 character, their families, and their farms. Yet, notwith- 
 standing their excited feelings, when the American 
 citizens, who from an armed schooner had cruelly bat- 
 tered the town of Amherstburgh, fell into the hands of 
 the brave militia of the western district, (in which not a 
 single rebel had been in arms,) did these prisoners fall 
 victims to popular fury, or were they even insulted? 
 No; the instant our invaders surrendered to British 
 power they experienced that mercy which adorns the 
 British name ; their wounds were healed at our hospi- 
 tals ; and from the western extremity of Upper Canada 
 they were conducted unharmed through the province, 
 safe under the protecting aegis of our laws. 
 
 " When a band of rebels, defeated in their cruel ob- 
 
 F
 
 66 
 
 ject to reduce this capital to ashes in the depth of a 
 Canadian winter, were, after the conflict at Gallows 
 Hill, brought to me as prisoners on the field, was any 
 distinction made between American-born and our other 
 Canadian subjects ? No ; all were released. Before the 
 assembled militia of Upper Canada all were equally 
 pardoned. And though many of our brave men, smart- 
 ing under feelings natural at the moment, evidently dis- 
 approved of the decision, yet all bowed in obedience to 
 the administrator of their laws ; and under the noble 
 influence of monarchical government, they allowed their 
 assailants to pass uninjured through their ranks. 
 
 u When the gallant inhabitants of the provinces of 
 New Brunswick and Nova Scotia received intelligence 
 that American citizens had commenced an attempt 
 to free the British North American Colonies 'from the 
 tyranny of British rule,'' did they rejoice at the event? 
 No ; a burst of loyalty resounded through their lands, 
 and a general desire to assist us was evinced. 
 
 " If Upper Canada was merely a young healthy 
 province, with no protection on the continent of Ame- 
 rica but its character, its industry, and the agricultural 
 difficulties it has to contend with, its filial attachment 
 to its Government, the bravery it has shown in its defence, 
 and the mercy it has extended to its captured assailants, 
 ought to be sufficient to make its aggressors ashamed of 
 their late attempt to force upon their neighbour institutions 
 which they conscientiously and unequivocally reject. But 
 when it is considered that Upper Canada is an integral 
 portion of the British Empire, and that the two coun- 
 tries are at this moment bound together by a solemn 
 treaty of peace, the faithless attack of citizens of the
 
 67 
 
 United States upon the province, after it had com- 
 pletely quelled a slight domestic insurrection, will, if 
 persisted in, excite feelings among the generous nations 
 of Europe, which will add but little to the character of 
 republican institutions ; for surely the smile of a nation 
 should not be more dreaded than its frown, or its ex- 
 tended hand be more fatal than its uplifted arm. 
 
 " When the facts just stated are clearly compre- 
 hended by intelligent men, how will the American citi- 
 zens, who have so wantonly attacked the British Em- 
 pire, find it possible to explain, that the province of 
 Upper Canada required them to interfere in its con- 
 cerns ? 
 
 " But it now seems to be admitted that our invaders 
 have been deceived, that they falsely estimated the 
 Canadian people, and that they have at last learned 
 that the yeomen, farmers, militia, Indians, and coloured 
 population of this province, prefer British institutions to 
 democracy; nevertheless, as an ex poste facto "excuse 
 for the sinful and repeated invasion of the province, it is 
 urged that the crew of the Caroline steam-boat, which 
 was captured more than fourteen days after Navy Island 
 had been forcibly taken from us, have been ' assassi- 
 nated,' and that * an extraordinary outrage ' has been 
 committed upon the Americans by our militia, who so 
 ably and gallantly cut out that pirate vessel. 
 
 " If Navy Island had been violently taken possession 
 of by Canadian rebels, instead of by a body of Ameri- 
 cans, armed, fed, and commanded by American citizens, 
 — if these Canadian rebels had then thought proper to 
 invade the United States, to break open half a dozen 
 of their State arsenals, to rob each of many hundred 
 
 F 2
 
 68 
 
 stand of arms, to plunder from the American Govern- 
 ment twenty-two pieces of cannon, and to set the laws 
 and authorities of the Republic at defiance, — could any 
 reasonable man declare that we should offer, or that we 
 could be supposed to intend to offer, any offence to our 
 allies, if in a moment of profound peace we were to 
 pursue in the Niagara river the guilty vessel which had 
 transported to the island these American arms, and 
 capture her, whether she were in British waters, in 
 American waters, moored to the British shore or to the 
 American shore ? Would it not be our bounden duty 
 to the American people to capture this pirate vessel ? 
 And if we were to fail to do so might not our allies hold 
 us responsible for acts of such unprovoked aggression 
 committed upon them by British subjects inhabiting a 
 British island ? 
 
 M Again, supposing that the Americans were to co- 
 operate with us (as under such circumstances of course 
 they would have done) in chasing this pirate vessel, 
 could it be supposed for a moment that each power 
 would only be permitted by the other to capture her so 
 long only as she continued in their own half of the river ; 
 and that if our British boatmen, at the peril of their 
 lives, were to capture the vessel in American waters 
 or on the American shore, it would be considered by the 
 Americans as a ' violent outrage ?' There can be no 
 doubt in the mind of any reasonable man, that we should 
 only perform our duty to the Americans by destroy- 
 ing a vessel belonging to our own islanders, which 
 had so grossly insulted them, which had completely 
 overpowered their Government, and which in a mo- 
 ment of peace had so flagrantly violated the laws of
 
 69 
 
 nations. And if we should be justified in capturing 
 the vessel of our islanders, on account of the wrongs 
 they had perpetrated upon the American nation, surely 
 we should have additional right to do so on our own 
 account, if the twenty-two pieces of cannon forcibly 
 wrested from the American Government had not only 
 been employed for a fortnight in firing from the island 
 upon the peaceable subjects of her Majesty, but to our 
 certain knowledge were about to be transported to our 
 main land for the purpose of committing murder, arson, 
 and robbery, in this province. 
 
 il It is, however, declared by our allies, that because 
 these lawless possessors of our island turned out to be 
 American citizens, and because their own Government 
 was totally unable to control them, the capture of the 
 vessel by us became a • violent outrage.' 
 
 " It would not have been considered by them an 
 outrage, had we by force of arms prevented Canadian 
 islanders from violating American arsenals, from in- 
 sulting American authorities, and from firing twenty- 
 two pieces of the United States cannon upon British 
 subjects; but it is considered as an outrage for us to 
 prevent an American vessel from enabling American citi- 
 zens to commit these unparalleled aggressions. 
 
 " In the history of this province the capture of the 
 Caroline (whoever might have been her crew) will, I 
 maintain, be respected by future ages as a noble proof 
 of the sincerity of the Canadian people to fulfil their 
 engagements by crushing a pirate force which, in viola- 
 tion of existing treaties, was insulting from a British 
 island their American allies, and which General Arcu 
 larius, Governor Mason, Governor Marcy, the President
 
 70 
 
 and Legislature of the United States, had absolutely 
 found too powerful for the executive force of the Re- 
 public to control. 
 
 " The fact that the pirate force was composed of and 
 commanded by American citizens adds to the aggression 
 committed against the Canadians, but subtracts nothing 
 from the crime of robbery perpetrated upon the 
 United States arsenals, unless indeed the American 
 people or the American authorities should deem it 
 proper to declare that it was no robbery at all, for that 
 the aggression was approved of, that the State cannon 
 and State muskets were knowingly and wilfully lent to 
 the invaders of Navy Island for the purpose of forcing 
 republican institutions upon the people of Upper 
 Canada, and that under these circumstances (which are 
 incredible) the attack of Canadian militia upon the 
 American citizens who were on board the Caroline was 
 * an extraordinary outrage.' 
 
 " But supposing for a moment this false reasoning 
 to be unanswerable,— supposing even that the commis- 
 sion of the outrage were to be admitted by the Cana- 
 dians, and that it were also to be admitted by them that 
 the capture by Canadians of a small steam-boat moored 
 to the American shore was an outrage equal in magni- 
 tude to the capture of Navy Island by American citi- 
 zens, — still, to make the Canadian outrage as flagrant 
 as that which had been committed upon us by citizens 
 of the United States, it would have been necessary for 
 the Canadians, after they had taken possession of the 
 Caroline, to have fired from her deck with twenty-two 
 pieces of cannon for more than a fortnight upon the 
 American shore ; and even then, though the outrages
 
 71 
 
 would certainly have been rendered apparently equal, 
 still the former would have been an outrage of retalia- 
 tion upon an enemy, the latter an outrage of unprovoked 
 attack upon a friend. 
 
 " There are two facts which the American nation 
 have not power to deny : — 
 
 " 1st. That it is their interest as well as their duty 
 to fulfil their treaties : 
 
 " 2nd. That if their people be permitted to rob the 
 United States' arsenals in order to invade a friendly 
 power, the lawless body will very soon find out that it 
 is easier to plunder their own wealthy defenceless citi- 
 zens, than the poor, brave, well-armed people of Upper 
 Canada. 
 
 " I have felt it to be the especial duty of the legisla- 
 tive station 1 hold, not only to protest against the un- 
 principled invasion of this province by its allies, but to 
 vindicate the inhabitants from the unreasonable accu- 
 sation which without due inquiry was mada against 
 them by the federal government of the United States, of 
 having ' assassinated"* the crew of the Caroline. 
 
 " The memoir of the attack which has just been made 
 upon us offers a moral to the mother-country, which I 
 feel confident will create throughout the empire consi- 
 derable sensation ; for although the old country is not 
 without its share of human misapprehension and preju- 
 dice, particularly as regards its transatlantic possessions, 
 yet, when facts are clearly submitted to it, its judgment 
 is always sound, and its verdict nobly impartial. 
 
 " The struggle on this continent between monarchy 
 and democracy has been a problem which Upper Canada 
 has just solved.
 
 72 
 
 " It had been very strongly argued, even in England, 
 that Democracy was the only form of government in- 
 digenous to to the soil of America, and that Monarchy 
 was a power which required here artificial support. 
 
 " With a view to subvert this theory, the whole of 
 the Queen's troops were allowed to retire from the pro- 
 vince, and the result, as had been anticipated, was that 
 the people of Upper Canada were no sooner left uncon- 
 trolled than they proclaimed themselves in favour of 
 monarchical institutions. Surrounded by temptations 
 on almost every side, they indignantly rejected them all. 
 In a few hours they successfully put down insurrection 
 in their own land ; and when American citizens, asto- 
 nished as well as disappointed at their loyalty, deter- 
 mined to force them to become Republicans, people of 
 all religions and of all politics rushed to the frontier 
 to die in defence of their glorious constitution. 
 
 " The conduct of the militia of Upper Canada at- 
 tracted the attention of the gallant and loyal inhabitants 
 of New Brunswick and Nova Scotia, whose legislatures 
 have done themselves, as well as this province, the 
 honour of promptly expressing their unqualified appro- 
 bation of the attachment which has been evinced here 
 to the British constitution. 
 
 " When these facts shall arrive before the English 
 people, and when they shall also have taken into their 
 consideration the devoted and unalterable attachment 
 which the British population of Lower Canada have 
 evinced for our revered institutions, surely they will 
 come to the conclusion, that the concurrent opinions of 
 her Majesty's North American Colonies respecting the
 
 73 
 
 relative advantages between monarchy and democracy in 
 America must be sounder than their own can be, inas- 
 much as eye-witnesses judge more correctly than people 
 can possibly do who are living four thousand miles off. 
 
 " The people of England will, I trust, not fail to ad- 
 mire the calmness, the resolution, the generosity, and 
 the honourable subjection to their laws, which have dis- 
 tinguished the inhabitants of Upper Canada; and, on' the 
 other hand, they certainly cannot fail to observe, that 
 the republican project of our English reformers, namely, 
 to make the people bit by bit responsible only to them- 
 selves, has ended in America by the Government of the 
 United States confessing its total inability to restrain 
 the passions of its citizens, to guard its State arsenals, 
 or to maintain its treaties with its oldest and most na- 
 tural ally. 
 
 " Lastly, the British people will, I trust, observe 
 with considerable alarm, that the leading advocates for 
 organic changes in our institutions are either* at this 
 moment lying in our gaols as traitors, or, from having 
 absconded are self-banished from the province ; in short, 
 that their pretended efforts to obtain in Upper Canada 
 what they called ' liberty for the people ' has ended 
 in a most infamous and self-interested attempt to plun- 
 der private property, rob the banks, and burn to ashes 
 the rising capital of their country ! 
 
 " With this experience before our eyes, I must con- 
 fess I join with the legislature and people of Upper 
 Canada in shuddering at the abused name of ' reform, 
 just as we now recoil with abhorrence when we hear sud- 
 denly pronounced the word 'sympathy.'
 
 74 
 
 " As my successor is hourly expected here, I return 
 to the mother-country as I left it, totally unconnected with 
 party or with politics : but in retirement I shall remem- 
 ber the lessons which the people of Upper Canada have 
 taught me. And I feel it my duty to declare, that I 
 leave the continent of America with my judgment 
 perfectly convinced, that the inhabitants of Europe, Asia, 
 and Africa are right in their opinion that all men are 
 not by nature equal ; that the assertion of the contrary 
 in America is a fallacy ; and that talent, industry, and 
 character must elevate individuals as they do nations in 
 the graduated scale of society. 
 
 " May the resplendent genius of the British Constitu- 
 tion ever continue to illuminate this noble land, and, 
 animated by its influence, may its inhabitants continue 
 to be distinguished for humility of demeanour, nobility of 
 mind, fidelity to their allies, courage before their enemy, 
 mercy in victory, integrity in commerce, reverence for 
 their religion, and, at all times and under all circum- 
 stances, implicit obedience to their laws. 
 
 " Honourable Gentlemen, and Gentlemen, farewell."
 
 75 
 
 IV. 
 
 Message of the American President at the close of the 
 
 year 1838. 
 
 "I had hoped, that the respect for the laws and 
 regard for the peace and honour of their own country, 
 which have ever characterized the citizens of the United 
 States, would have prevented any portion of them from 
 using any means to promote insurrection in the terri- 
 tory of a power with which we are at peace, and with 
 which the United States are desirous of maintaining 
 the most friendly relations. I regret, deeply, however, 
 to be obliged to inform you, that this has not been 
 the case. Information has been given to me, derived 
 from official and other sources, that many citizens of 
 the United States have associated together to make 
 hostile incursions from our territory into Canada, and 
 to aid and abet insurrection there, in violation of the 
 obligations and laws of the United, States, and in open 
 disregard of their own duties as citizens. This in- 
 formation has been, in part, confirmed by a hostile 
 invasion actually made by citizens of the United States, 
 in conjunction with Canadians and others, and accom- 
 panied by a forcible seizure of the property of our 
 citizens and an application thereof to the prosecution of 
 military operations, against the authorities and people 
 of Canada. 
 
 " The results of these criminal assaults upon the 
 peace and order of a neighbouring country have been, 
 as was to be expected, fatally destructive to the mis- 
 guided or deluded persons engaged in them, and highly 
 injurious to those, in whose behalf they are professed
 
 76 
 
 to have been undertaken. The authorities in Canada, 
 from intelligence received of such intended movements 
 among our citizens, have felt themselves obliged to take 
 precautionary measures against them, have actually 
 embodied the militia, and assumed an attitude to repel 
 the invasion to which they believed the colonies were 
 exposed from the United States. A state of feeling on 
 both sides of the frontier has thus been produced, which 
 called for prompt and vigorous interference. If an 
 insurrection existed in Canada, the amicable dispositions 
 of the United States towards Great Britain, as well as 
 their duty to themselves, would lead them to maintain 
 a strict neutrality, and to restrain their citizens from all 
 violations of the laws which have been passed for its en- 
 forcement. But this Government recognizes a still 
 higher obligation to repress all attempts on the part of 
 its citizens to disturb the peace of a country, where 
 order prevails, or has been re-established. Depre- 
 dations by our citizens upon nations at peace with the 
 United States, or combinations for committing them, 
 have, at all times, been regarded by the American 
 Government and people with the greatest abhorrence. 
 Military incursions by our citizens into countries so 
 situated, and the commission of acts of violence on the 
 members thereof, in order to effect a change in its 
 government, or under any pretext whatever, have, 
 from the commencement of our Government, been 
 held equally criminal on the part of those engaged in 
 them, and as much deserving of punishment as would 
 be the disturbance of the public peace by the perpe- 
 tration of similar acts within our own territory. 
 
 " By no country or persons have these invaluable
 
 77 
 
 principles of international law, principles, the strict 
 observance of which is so indispensable to the preserva- 
 tion of social order in the world, been more earnestly 
 cherished or sacredly respected than by those great and 
 good men who first declared, and finally established, the 
 independence of our own country. They promulgated 
 and maintained them at an early and critical period in 
 our history ; they were subsequently embodied in legis- 
 lative enactments of a highly penal character, the faith- 
 ful enforcement of which has hitherto been, and will, I 
 trust, always continue to be, regarded as a duty inse- 
 parably associated with the maintenance of our national 
 honour. That the people of the United States should 
 feel an interest in the spread of political institutions as 
 free as they regard their own to be, is natural ; nor can 
 a sincere solicitude for the success of all those who are 
 at any time, in good faith, struggling for their acquisi- 
 tion, be imputed to our citizens as a crime. With the 
 entire freedom of opinion, and an undisguised expression 
 thereof on their part, the Government has neither the 
 right, nor, I trust, the disposition, to interfere. But, 
 whether the interest or the honour of the United States 
 require that they should be made a party to any such 
 struggle, and by inevitable consequence to the war 
 which is waged in its support, is a question, which, by 
 our constitution, is wisely left to Congress alone to decide. 
 It is, by the laws, already made criminal in our citizens 
 to embarrass or anticipate that decision by unauthorized 
 military operations on their part. Offences of this cha- 
 racter, in addition to their criminality, as violations of 
 the laws of our country, have a direct tendency to draw 
 down upon our own citizens at large, the multiplied
 
 78 
 
 evils of a foreign war, and expose to injurious impu- 
 tations the good faith and honour of the country. As 
 such they deserve to be put down with promptitude and 
 decision. I cannot be mistaken, I am confident, in 
 counting on the cordial and general concurrence of our 
 fellow-citizens in this sentiment. A copy of the pro- 
 clamation which I have felt it my duty to issue, is 
 herewith communicated. I cannot but hope, that the 
 good sense and patriotism, the regard for the honour 
 and reputation of their country, the respect for the 
 laws which they have themselves enacted for their own 
 government, and the love of order for which the mass of 
 our people have been so long and so justly distin- 
 guished, will deter the comparatively few who are en- 
 gaged in them, from a further prosecution of such 
 desperate enterprises. In the mean time, the existing 
 laws have been, and will continue to be, faithfully exe- 
 cuted, and every effort will be made to carry them out 
 to their full extent. Whether they are sufficient or 
 not to meet the actual state of things on the Canadian 
 frontier, it is for Congress to decide," 
 
 No. V. 
 
 Message of the American President at the close of the 
 
 year 1839. 
 
 " There is every reason to believe, that disturbances 
 like those which lately agitated the neighbouring British 
 provinces will not again prove the sources of border 
 contentions, or interpose obstacles to the continuance 
 of that good understanding which it is the mutual in-
 
 79 
 
 terest of Great Britain and the United States to pre- 
 serve and maintain. 
 
 w Within the provinces themselves tranquillity is re- 
 stored, and on our frontier that misguided sympathy in 
 favour of what was presumed to be a general effort in 
 behalf of popular rights, and which in some instances 
 misled a few of our more inexperienced citizens, has 
 subsided into a rational conviction strongly opposed to 
 all intermeddling with the internal affairs of our neigh- 
 bours. The people of the United States feel, as it is 
 hoped they always will, a warm solicitude for the suc- 
 cess of all who are sincerely endeavouring to improve 
 the political condition of mankind. This generous feel- 
 ing they cherish towards the most distant nations ; and 
 it was natural, therefore, that it should be awakened 
 with more than common warmth in behalf of their im- 
 mediate neighbours. But it does not belong to their 
 character, as a community, to seek the gratification of 
 those feelings in acts which violate their duty* as citi- 
 zens, endanger the peace of their country, and tend to 
 bring upon it the stain of a violated faith towards fo- 
 reign nations. If, zealous to confer benefits on others, 
 they appear for a moment to lose sight of the perma- 
 nent obligations imposed upon them as citizens, they 
 are seldom long misled. From all the information I re- 
 ceive, confirmed to some extent by personal observa- 
 tions, I am satisfied that no one can now hope to en- 
 gage in such enterprizes without encountering public 
 indignation, in addition to the severest penalties of the 
 law. 
 
 " Recent information also leads me to hope that the 
 emigrants from her Majesty's provinces, who have sought
 
 80 
 
 refuge within our boundaries, are disposed to become 
 peaceable residents, and to abstain from all attempts to 
 endanger the peace of the country which has afforded 
 them an asylum. On a review of the occurrences on 
 both sides of the line, it is satisfactory to reflect, that 
 in almost every complaint against our country the 
 offence may be traced to emigrants from the provinces 
 who have sought refuge here. In the few instances in 
 which they were aided by citizens of the United States, 
 the acts of these misguided men were not only in direct 
 contravention of the laws and well-known wishes of 
 their own government, but met with the decided disap- 
 probation of the people of the United States. 
 
 " I regret to state the appearance of a different spirit 
 among her Majesty's subjects in the Canadas. The 
 sentiments of hostility to our people and institutions, 
 which have been so frequently expressed there, and the 
 disregard of our rights which have been manifested on 
 some occasions, have, I am sorry to say, been applauded 
 and encouraged by the people, and even by some of the 
 subordinate local authorities of the provinces. The chief 
 officers in Canada fortunately have not entertained the 
 same feeling, and have probably prevented excesses that 
 must have been fatal to the peace of the two coun- 
 tries. 
 
 " I look forward anxiously to a period when all the 
 transactions which have grown out of this condition of 
 our affairs, and which have been made the subjects of 
 complaint and remonstrance by the two governments 
 respectively, shall be fully examined, and the proper 
 satisfaction given where it is due from either side."
 
 81 
 
 VI. 
 
 Extract from Message of American President, at the 
 close of the year 1841. 
 
 " I regret that it is not in my power to make known 
 to you an equally satisfactory conclusion in the case 
 of the Caroline steamer, with the circumstances con- 
 nected with the destruction of which, in Decem- 
 ber, 1837, by an armed force fitted out in the province 
 of Upper Canada, you are already acquainted. No 
 such atonement as was due for the public wrong done 
 to the United States for the invasion of her territory, so 
 wholly irreconcilable with her rights as an independent 
 power, has yet been made. In the view taken by this 
 government, the inquiry whether the vessel was in the 
 employment of those who were prosecuting an» unautho- 
 rised war against that province, or was engaged by the 
 owner in the business of transporting persons to and 
 from Navy Island in hopes of private gain, which was 
 most probably the case, in no degree alters the real 
 question at issue between the two governments. This 
 government can never concede to any foreign govern- 
 ment the power, except in a case of most urgent and 
 extreme necessity, either to arrest the persons or destroy 
 the property of those who may have violated the muni- 
 cipal laws of such foreign government, or have disre- 
 garded their obligations arising under the law of nations # 
 
 " The territory of the United States must be regarded 
 as sacredly secure against all such invasions, until they 
 shall voluntarily acknowledge their inability to acquit 
 
 G
 
 82 
 
 themselves of their duties to others. And in announ- 
 cing this sentiment, I do but affirm a principle which 
 no nation on earth would be more ready to vindicate at 
 all hazards than the people and government of Great 
 Britain. If, upon a full investigation of all the facts, it 
 shall appear, that the owner of the Caroline was 
 governed by a hostile intent, or had made common 
 cause with those who were in the occupancy of Navy 
 Island, then so far as he is concerned, there can be no 
 claim to indemnity for the destruction of his boat, which 
 the government would feel itself bound to prosecute, since 
 he would have acted not only in derogation of the rights 
 of Great Britain, but in clear violation of the laws of the 
 United States. But that is a question, which, however 
 settled, in no manner involves the higher consideration 
 of the violation of the laws of territorial sovereignty 
 and jurisdiction. To recognise it as an admissible 
 practice, that each government in its turn, upon any 
 sudden and unauthorised outbreak on a frontier, the 
 extent of which renders it impossible for either to have 
 an efficient force on every mile of it, and which outbreak, 
 therefore, neither may be able to suppress in a day, may 
 take vengeance into its own hands, and without even a 
 commission, and in the absence of any pressing or over- 
 ruling necessity, may lead them to violate the territory 
 of another, would inevitably lead to results equally to be 
 deplored by both. 
 
 •" When border collisions come to receive the sanction, 
 or to be made on the authority of either government, 
 general war must be the inevitable result. While it is 
 the ardent desire of the United States to cultivate the 
 relations of peace with all nations, and to fulfil all the
 
 83 
 
 duties of good neighbourhood towards those who possess 
 territories adjoining their own, that very desire would 
 lead them to deny the right of any foreign power to in- 
 vade their territory with an armed force." 
 
 LONDON : 
 
 FRINTED BY G. J. PALMER, SAVOY STREET, STRAND.
 
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