Quote:
from CFR article
Under what other legal circumstances could U.S. forces enter Syria?
..... Other experts point to the 1837 Caroline case, in which British and Canadian rebels crossed into U.S. territory and set the steamer Caroline ablaze, killing two Americans in the process. The Americans argued that the British claim of self-defense - the ship was suspected of ferrying arms to anti-British rebels - failed to “show a necessity of self-defense [that was] instant, overwhelming, leaving no choice of means, and no moment for deliberation,” a line of argument often cited by legal authorities to justify anticipatory self-defense.
This account is mostly screwed up (e.g., to point out only one serious error: not "British and Canadian rebels", but rather organized Canadian militia acting pursuant to their colonel's orders). The Brit claim was not "self-defense", but rather McLeod's "combatant immunity" (in modern terms) - which is quite a different thing.
The McLeod-Caroline case, in fact, is a US precedent for the proposition that there is no well-recognized general right of hot pursuit on land.
The following quotes are from an account of that case, published in 1881, 1899:
http://www.econlib.org/library/YPDBo...r/llCy694.html
By way of background, a significant number of US residents (organized into Hunters' Lodges from NY to Ohio) were intent on an invasion of Canada. The US Federal government took a dim view of their activities. Two of their leaders (Mackenzie and Johnson) were indicted and convicted in US Circuit Court for the Northern District of New York for violation of the Neutrality Act of 1818.
The Caroline was a US registered ship which was used to supply some of Mackenzie's bunch, who had seized Navy Island in the Niagara River (in Canadian territory). The McLeod case ensued.
Quote:
McLEOD CASE, The (IN U. S. HISTORY). In 1837, after the suppression of the Canadian rebellion, or patriot war, a number of Canadian refugees and Americans, using New York state as a base of operations, seized Navy island, in the Niagara river, about two miles above the falls and within British jurisdiction, in order to keep the war alive. Col. McNabb, commanding the Canadian militia, sent a party, on the night of Dec. 29, 1837, to capture the steamer Caroline, which carried supplies to Navy island. The attacking party found her at a wharf on the American side of the river, captured her, after a conflict in which one American, Amos Durfee, was killed, and sent her over the falls in flames. In January, 1838, the British government, in an official communication to the government of the United States, assumed the entire responsibility for the burning of the Caroline.
In November, 1840, Alexander McLeod, while in New York state on business, aroused intense feeling among the people there by boasting of his exploits in the attack on the Caroline. He was arrested, lodged in jail in Lockport, and indicted in February, 1841, for murder. At first, bail was accepted, but this increased the excitement, and he was remanded to jail. The British minister demanded his release, in a note to the secretary of state, for the reasons that McLeod was acting under orders in an enterprise planned, executed and avowed by his superiors; that the question was one of international law, to be settled by the two national governments; that the courts of New York had not the means to judge or the right to decide such a question; and that the British government could not recognize the state jurisdiction of the case, but must hold the government of the United States responsible for McLeod.
In short, the Brits claimed that McLeod had "combatant immunity" (in modern terms) as a Canadian militia member; and the US Federal government agreed with the Brits ! As it turned out, both governments were acting on incorrect data (as found by the jury in McLeod's trial).
Quote:
The new president, Harrison, and his cabinet were unanimous in considering the British claim just; but the minister was informed that it was an impossibility to release a person confined under judicial process, except by operation of law. At first the administration hoped that Gov. Seward, of New York, would order the prosecuting officer of the state to enter a nolle prosequi. The governor, however, refused to interfere, but directed that the trial, March 22, 1841, should take place before the chief justice of the state. The president then directed the attorney general of the United States to proceed to Lockport, see that McLeod had skillful counsel, furnish them with the evidence of the British government's official avowal of the burning of the Caroline, and take steps to transfer the case to the supreme court by writ of error, if McLeod's defense should be overruled.
New York disgreed, since the murder took place in NY, outside of the Canadian militia's "writ". The criminal action then proceeded in the NY court system.
Quote:
McLeod was brought before the court [NY Court of Appeals] on writ of habeas corpus, and his discharge was asked on the grounds assigned above. The court, however, held that its jurisdiction over the case was complete; that there was no war in existence at the time in any form; that the burning of the Caroline was not an act of magistracy on the part of the Canadian authorities, since it was committed out of Canadian jurisdiction; that all the persons concerned in the affair were "individuals proceeding on their own responsibility," and liable either for arson or for murder; and that the indictment precluded McLeod's discharge upon habeas corpus.
In short, in the eyes of NY, McLeod was an "unlawful enemy combatant" (in modern terms).
Quote:
The case finally came to nothing. McLeod, who seems to have been a liar as well as a braggart, proved an alibi in October 1841, and was acquitted; and congress, by act of Aug. 29, 1842, provided that if such cases should thereafter arise they should be transferred to the United States courts by writ of habeas corpus (See HABEAS CORPUS.) The British government July 28, 1842, apologized for the violation of Territory, and regretted that "explanation and apology was not immediately made"; the American government declared its satisfaction; and the case was ended.
So, the UK government felt a fool - it said McLeod was there as a soldier; he and his witnesses said he wasn't there at all. The witnesses who were to testify to his presence at the scene became "unavailable". The original UK protest was thus factually unsound - based on the trial evidence (not necessarily reality).
The important point in I Law (and to the doctrine of hot pursuit) is that the UK government, in the end, apologized for its troops' violation of US territory. Thus, McLeod is a US precedent AGAINST a general right of hot pursuit across international land boundaries.
Of course, other facts - UN resolutions; treaties, executive agreements, etc. - can provide rights of hot pursuit. Which brings us to the next post on that question.
