The Creole Affair

by Arthur T. Downey

  Many Southerners became so alarmed by the consequences of British emancipation in the Caribbean that they pictured a British seizure of Cuba as well as the British use of black troops in an invasion of Florida and the Gulf states—all part of an overreaching plan to destroy the slave societies with which the impoverished British colonies could no longer compete.[9]

  More broadly, the view of Britain held by many Americans was not helped by “contemptuous anti-American essays in British periodicals, and by unflattering descriptions by English travelers that were widely reprinted in the United States.”[10] Irish immigrants in America, not surprisingly, viewed England as their eternal enemy. Some Americans even blamed the United Kingdom for the severe economic depression beginning in the late 1830s.

  Queen Victoria acceded to the throne in June 1837, at age eighteen, and she married Prince Albert of Saxe in February 1840. Four months later, the Queen experienced the first assassination attempt, during her routine carriage ride in Hyde Park.[11] She used her brush with mortality to affirm her popular legitimacy with her subjects, by commanding her driver to “drive on” almost as soon as the would-be assassin’s pistol was discharged.[12] Prince Albert soon became the president of the Society for the Extinction of Slavery.

  England itself was free of slavery,[13] though slaves brought into England and then returned to a British colony did not become emancipated by virtue of the stay in England.[14] Britain had ended its participation in the international slave trade in 1807, though it did not stop British investment in the slave trade or the building of slave ships in British dockyards. Pressured in part by the slave revolt in the colony of Jamaica in 1831–1832, put down by the British Army,[15] Parliament provided for gradual abolition of slavery in its colonies, as of September 1834.[16] All slaves under six years old were freed immediately, and all others were freed over five years. Britain compensated the slave owners in its Caribbean colonies; the government borrowed an amount equal to about 40 percent of its budget to meet the 47,000 claims for the loss of human property.[17]

  Upper-class Americans, especially in the North, admired British accomplishments, were aware of the strong US-UK economic relationships, and respected British power. On the other hand, Anglophobia coexisted with this respect. Most Americans still viewed Britain as the major threat to their security and prosperity. Lack of trust between the two nations was palpable. As one great scholar of the period noted: “each nation feared the other’s motives and made contingency preparations for a war neither side wanted.”[18]

  The War of 1812 and the burning of Washington by the British had taken place only one generation earlier. Many people had heard firsthand stories from their parents and grandparents about the awful British. British Canada was the place from which Americans expected an attack.

  There were two separate British colonies in Canada, prior to 1841: Lower Canada, the former French colony stretching from Montreal northeastward toward Newfoundland, along the lower portion of the St. Lawrence River; and Upper Canada, comprising what is today Ontario, along the upper portion of the St. Lawrence River. The British Parliament, in July 1840, passed the Act of Union,[19] which, as of February 1841, abolished the legislatures of Lower Canada and Upper Canada, and established a new single political entity, the Province of Canada, to replace them. The new, merged colony had its seat of government in Kingston.

  Three serious disturbances along the US border with British Canada cast long and dark shadows over US-British relations.

  The Caroline Affair

  In November 1837, a rebellion began in Lower Canada against the British colonial government, and it spread to Upper Canada. During these rebellions, sympathetic militias were formed in the United States. They fomented anti-British sentiment and helped the insurgents in Upper Canada, despite the efforts of the US government to maintain order and to restrain cooperation with the rebels. US law provided penalties against any Americans who aided “expeditions or enterprises” directed against any country at peace with the United States. In December 1837, some of the rebel leaders tried to raise forces in Buffalo, New York. The rebels set up a headquarters on Navy Island, which was on British territory just across the Niagara River from Schlosser, New York. Hundreds of Americans crossed by steamer to Navy Island to help the rebels.

  On December 29, 1837, forty-five men, under the command of a British naval officer, left Upper Canada, rowed across the Niagara River, and stormed the US merchant ship the Caroline, which was docked at Schlosser, New York. The forty-six-ton ship had been hired by the American insurgents to transport supplies and men to Navy Island. The British officer ordered that the ship should be set on fire and be allowed to drift toward Niagara Falls. The ship sank, wreckage dropped over the falls, and an American citizen was killed. This incident led to a famous international law formulation setting out the limits of when a nation might resort to force.[20] One scholar noted that the Caroline case changed self-defense “from a political excuse to a legal doctrine.”[21]

  The American steamer Caroline, set on fire by British forces in December 1837, and sent adrift over Niagara Falls. This incident led to the US formulation on the limits of when a nation might resort to force.

  This British action provoked outrage in the United States, especially in New York State. Some called for a declaration of war against the United Kingdom. President Van Buren learned of the Caroline affair on January 4, 1838, just before a dinner he was hosting. General Winfield Scott and Kentucky Senator Henry Clay waited some time for the dinner to begin, but they were told that the president was in a cabinet meeting. Finally, Van Buren, “drawn and pale,”[22] entered the room and ordered Scott to go the Niagara border to establish calm. Secretary of War Poinsett was writing Scott’s instructions at the same time. The president, a New Yorker himself, knew that war would be a disaster. Scott had been a hero of the War of 1812, and led the capture of the British Fort George at the Niagara River in Ontario in 1813. By mid-January, Scott was successful in persuading the American militias to abandon Navy Island, and some local calm was restored. Nevertheless, the British increased their fleet on the Great Lakes, and many Americans remained outraged at the British.

  President Van Buren sent a message to Congress on January 5, 1838, asking for full powers to restrain unauthorized American actions. On the same day, Secretary of State John Forsyth sent a note to the British minister in Washington, Henry S. Fox, complaining about the outrage and suggesting redress. Fox’s reply justified the attack on the Caroline on the basis of “self-defense.” On May 22, 1838, US Minister Stevenson in London delivered to the British Foreign Secretary, Lord Palmerston, a formal US diplomatic claim for redress for the burning of the Caroline. Stevenson’s note was in essence a legal brief based on international law. Lord Palmerston replied in early June, promising a substantive reply soon. In fact, the foreign secretary did not respond in full until more than three years later.

  The local population in Buffalo remained inclined toward retaliation, and further conflict remained possible. Indeed, in late 1840, a congressman from the Buffalo area, Millard Fillmore, demanded redress from the British and sought funds to enhance the US Navy, especially in the Great Lakes.[23] The British government had already been bringing up militia and increasing the number of regular soldiers, but when news of the Caroline reached London, the British added further regiments. By 1840, almost 12,000 British regulars were in Canada. While aimed primarily at ending the rebellion and calming the border, this military presence also reflected a growing apprehension of war with the United States.

  The McLeod Affair

  Lewiston, New York, is a small town on the Niagara River, about halfway between Lake Ontario and Niagara Falls. On November 12, 1840, Alexander McLeod, a deputy sheriff from Upper Canada, while passing through Lewiston, New York, foolishly boasted of his part in the burning of the Caroline. Not surprisingly, he was promptly arrested by New York State authorities on murder and arson charges. At that point, the Van Buren administration just h
ad been repudiated at the polls, and Van Buren himself was reluctant to upset his relations with his fellow New Yorkers. And so, as one scholar put it, better “to leave the unholy mess in the hands of this Whig successor, William Henry Harrison.”[24]

  The British minister in Washington, Henry Fox, wrote to Secretary of State Forsyth on December 13, 1840, demanding that McLeod be released. Fox took the position that everyone knew that McLeod had not been involved in the attack on the Caroline, but that, even if he had been, his involvement was as a part of an official action of the British government, and so should have no individual liability. This was not unlike a criminal defense plea: “I didn’t shoot him, but if I had, it was in self-defense.” In response, Forsyth took a position reflecting the federal nature of the American system: this was not a federal matter. McLeod was free to assert any defense he desired in a New York court, including that he was immune under international law.

  In February 1841, a New York grand jury indicted McLeod on seventeen counts. The British foreign secretary, Lord Palmerston, told US Minister Stevenson in London that “if McLeod is executed, there must be war.” Also in February, the chairman of the House Foreign Affairs Committee (Francis Pickens of South Carolina) publicly aired a report expressing concern about Britain’s power, focused on the Caroline and the McLeod affairs. He declared Britain a global menace.

  Daniel Webster became President Harrison’s secretary of state on March 6, 1841. Former secretary of state Forsyth must have been delighted to pass off to Webster the international hot potato of the McLeod affair. Just six days after the new secretary took office, British Minister Fox wrote to Webster. Fox once again asserted that McLeod should be released, because he could have no personal responsibility for having engaged in actions taken by the British government. Fox pointed out in his March 12 letter that it was absurd for the US government to claim that it had no power to interfere with New York State on this matter. If that were the case, Fox asserted,

  such a doctrine . . . would go at once to a dissolution of the Union as far as its relations with foreign Powers are concerned; and that foreign Powers, in such a case, instead of accrediting diplomatic agents to the Federal Government, would send such agents not to that Government, but to the Government of each separate State.[25]

  Webster’s reply letter to Fox was delayed by the enormous intervening event of the death of President Harrison on April 4.

  In the meantime, political pressures mounted in both countries. The US Minister in London since 1836, Andrew Stevenson—a holdover from the Van Buren administration—wrote to Webster on March 18, 1841, reporting that the British press and the people had the “strongest feelings of indignation” toward the United States because of the Caroline and the McLeod affair. Both the United States and the United Kingdom began military preparations. That same month, Russian Czar Nicholas offered to mediate the dispute, since he decided that a US-UK war would be harmful to Russian trade and alliances. His offer was not accepted.

  Webster finally replied to Fox, the British minister in Washington, on April 24, 1841. Webster dealt with both the McLeod affair and with the Caroline issue. His letter contained what has become known as the famous “Caroline Rule” in international law. In a legally correct and politically brilliant step, Webster agreed with the British position that, under international law, McLeod could not be held personally liable for any acts ordered by the British government. Threading the needle, however, Webster explained—as had Forsyth—that under the US federal system, Washington could not order the release of someone held by New York State legal authorities.[26] After thus extending a nod to the British understanding of international law, Webster presented the now famous position that the British attack on the Caroline itself violated international law: international law required a proper assertion of “self-defense,” and, in order to justify an attack, a nation must demonstrate the “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”[27]

  Webster then focused on the local legal situation in New York. He asked US Attorney General John Crittenden to meet with Governor Seward of New York to figure out some way to release McLeod. But Seward refused. Then, Webster decided that McLeod’s local lawyers were not up to the task, and he pressured Crittenden to make sure that McLeod had a first-class lawyer. Quickly, a highly respected lawyer, Joshua A. Spencer, appeared as McLeod’s counsel and—with amazing “coincidence”—Spencer also was named a US district attorney. McLeod’s lawyers filed for a writ of habeas corpus in the New York State Supreme Court, which sat in New York City. Once again, with amazing coincidence, Webster showed up in New York City to meet personally with McLeod’s lawyers. Despite these enormous efforts, McLeod’s petition was rejected, 3 to 0, on July 12, 1841. Webster was furious.

  In July 1841, President Tyler proposed legislation to strengthen the nation’s land and sea defenses. On September 4, 1841, Congress passed a fortifications bill that was three times the average annual military appropriations during the previous decade. The next day, the British minister in Washington, Henry Fox, wrote to Webster and raised the prospect of the “heavy calamity of War.” One scholar summed up the situation:

  It was widely anticipated in both Europe and the United States that the execution of McLeod would lead Britain to recall its minister from Washington, sever diplomatic relations, and declare war on the American republic. To avert such a predictable scenario, John Tyler told the British minister Henry S. Fox that if McLeod were to be executed the president intended to refuse Fox his passport and forcible [sic] keep him in the United States under virtual house arrest.[28]

  McLeod’s trial in upstate New York began on October 4, 1841, and lasted for eight days. His defense, argued by his new lawyer, Spencer, was comprehensive, and the jury deliberated less than thirty minutes before returning a verdict of not guilty. McLeod was promptly released. The sighs of relief were nearly audible across the Atlantic Ocean, and down to Washington. In his message to the Congress at the beginning of the second session of the 27th Congress on December 7, 1841, Tyler explained that Alexander McLeod “has been acquitted by the verdict of an impartial and intelligent jury, and has . . . been regularly discharged.” Tyler took the occasion to propose to Congress that, in the light of the difficulty surrounding the McLeod juridical problems, Congress should consider legislation to provide for the removal of such cases in the future from the state to the federal judiciary.

  But US-UK relations remained precarious even though the McLeod issue was resolved. President Tyler, in his December 7, 1841, message to Congress, made clear that the larger Caroline affair remained unsettled. Tyler continued to “indulge the hope” that the British would see “the propriety of renouncing, as a rule of future action, the precedent which had been set” over the Caroline.

  The Aroostook “War”

  At the same time that there were severe tensions along the New York State border with Upper Canada, the Maine border area was also under stress. During the War of 1812, the British occupied most of eastern Maine (then part of Massachusetts) and, after the war, the boundary line was disputed. Maine became a separate state in 1820, but the border with Lower Canada remained unclear. Problems flared between the United States and New Brunswick authorities in the late 1830s over lumbering and other property issues. In late 1838, Canadian lumberjacks from the province of New Brunswick cut timber in the disputed area of the Aroostook River, and it seemed that a military showdown was imminent.[29] By February 1839, the Maine legislature authorized militia to defend its positions on the Aroostook River. Maine was not alone: the “legislatures of Alabama, Virginia, Maryland, Massachusetts, Pennsylvania, Ohio, Indiana, and Kentucky all promised aid. The brigadier general of the Illinois militia offered military assistance.”[30]

  Perhaps there was too much excitement, and less substance. One scholar noted: “The so-called Aroostook War amounted to little more than a barroom brawl, the major casualties bloody noses and broken arms. Bu
t territorial dispute continued to threaten the peace.”[31] Yet, the risk of this situation spinning out of control was sufficiently high for President Van Buren to assign General Winfield Scott to Maine in early 1839. Troubleshooter Scott had been successful almost exactly one year earlier in cooling the passions in upper New York State arising out of the Caroline incident. Once again, General Scott calmed the waters. Scott was able to persuade Maine to recall its militia, but tensions along the disputed border remained high for the next two years with occasional skirmishes. These local brawls made the United States realize how unprepared it was for a military conflict with Britain.[32]

  Shipping Slaves (Comet, Encomium, Enterprise, Hermosa)

  A significant portion of the transfer of slaves from the slaveholding states in the east to the slave territories in the southwest took place by ship. Typically, a ship was loaded with slaves, other cargo, and some passengers in Baltimore or Richmond or elsewhere along the shore in the eastern slave states, and then the ship sailed to New Orleans, which had become the great capital of the American slave trade—and had become tied with Baltimore for being the second largest city in America, after New York. The voyage required passing relatively near some of the British possessions in the Caribbean. Sometimes the currents and winds brought a vessel dangerously close to rocky islets. Sometimes shipwrecks happened. Four such shipwrecks had caused problems in US-UK relations before the Creole left Richmond in the late fall of 1841.