In his Report on the Affairs of British North America, Lord Durham urged that it be
‘recollected that the natural ties of sympathy between the English population of the Canadas and the inhabitants of the frontier States of the Union are peculiarly strong’. Durham was 1 here concerned specifically with the way ‘common wants beget an interest in the politics of each country’, and the level of danger he saw presented to Canada by ‘sympathisers’ in the United States. His point, however, is also a perfect illustration of a wider truth, which is that it was issues concerning the border and border populations that were central to the British- American relationship over Canada and the Northeast in the period. The Canadian rebellions brought the risk of frontier insurgency. The Caroline and McLeod affairs both had their origins in an attack driven by individuals from across the border. The Northeastern boundary dispute, and the conflict over fishing rights, were given urgency by locals pushing the limits of territorial rights. This chapter is concerned with how international law influenced the way British policy navigated these problems around border security. Its central contention is that Britain worked with the United States by reference to rules within a shared legal framework. Policy, as a result, was filtered through principles associated with self-preservation and sovereignty, and guided by the sanctity of treaty law. As well as providing an underlying level of agreement to the British-American relationship, this also had the crucial effect of helping to separate the making of policy from the circumstances of the immediate tensions.
The chapter makes three main arguments. It begins by establishing how international law helped Britain to maintain workable relations with the United States and deal with border instability during the Canadian rebellions. The key factor was the emphasis on the duty of protection in Britain’s explanations of its actions, which ensured that British policy related to the United States within the ambit of international law. Foreign intervention from the United States was, as a result, less likely. Britain was then able to use principles of
international law associated with sovereignty and self-preservation to call for greater security co-operation along the border. Whilst the United States did not respond by adopting exactly the same legal reasoning as Britain, it, nevertheless, did take some serious action aimed at reducing tensions. Importantly, it also used principles of international law, albeit different ones to Britain, to justify the basis for its actions. The second section then shows how
This quotation and the others in this paragraph are by Lord Durham in Durham, Earl of, Report on 1
international law was central to the way British policy handled the acute tensions with the United States which nevertheless arose from Britain’s Canadian policy. Whilst the Caroline and McLeod affairs resulted from alleged breaches of legal principles, international law, however, also guided their ultimate resolution. Furthermore, international law was used successfully by the United States to resist British policy aimed at entering American territory for security reasons in extreme circumstances. Finally, the third section contends that international law was at the heart of the outstanding British-American territorial issues in relation to Canada. The agreements in previous treaties meant that the main focus of British policy, outside of the Canadian rebellions, was on the disputes over the Northeastern
boundary and fishing rights. These were technical, legal disputes aimed at working out the meaning of what had already been agreed, rather than fighting fresh strategic contests. Law was, thus, critical in setting the policy expectations, process, and arguments.
Protecting Canada and co-operation over ongoing border disturbances
The most important stages of the Canadian rebellions, and the nature of the related concern over Britain’s relations with the United States, can be summarised briefly for present
purposes. From the perspective of the government in London, the main British involvement in the period undoubtedly began with the impasse in the province of Lower Canada over the refusal of the local Assembly to agree to the necessary ‘supply’ votes to pay for the salaries of judges and other officials. In response, Parliament passed ten resolutions in the spring of 1837 aimed at providing the required funds, albeit that such a direct intervention into
Canadian affairs was controversial. This was then followed by the rebellions proper, which 2 began in Lower Canada, in late 1837, before spreading to Upper Canada shortly thereafter. The British government reacted to this by suspending the constitution in Lower Canada, and
The House of Commons ordered that the resolutions be communicated to the House of Lords in a 2
conference on 28 April 1837: HC, 28 April 1837, Vol. XXXVIII, 359. The House of Lords supported the resolutions following a debate on 9 May 1837: HL, 9 May 1837, Vol. XXXVIII, 707-750. Crucially, however, the British government, in turn, also rejected at this time any idea of making the government in Lower Canada more accountable, either by means of an Executive Council
‘responsible’ to the Assembly or a Legislative Council elected by the people. The structure of the then ‘government’ in Lower Canada was, broadly, that there was a Governor, an Executive Council (with the Executive Council being viewed in the British parliamentary debates, as an appointed ‘cabinet’), a Legislative Council (which was also appointed, and had been originally introduced in an attempt to provide a ‘Canadian House of Lords’ to balance the Assembly), and, finally, an Assembly, which was elected.
appointing Lord Durham as Governor-General, with both extensive personal powers and a mandate to report with proposals for the future government of the Canadas. In the event, 3 these, and some additional revolts in late 1838, were quashed by the provincial authorities relatively quickly. It was in these better overall circumstances that the British government then accepted Durham's proposals for a legislative union of Upper and Lower Canada in 1839, whilst also rejecting his other main idea for ‘responsible’ government. Nevertheless, 4 importantly, despite an improving general position, Britain was also faced throughout by the problem of a significant residual level of border disturbances, involving both Americans and Canadians living in the United States.
The main concern for British policy towards the United States from these events was that Americans would, in some way, become involved in Canadian affairs and that this could cause a rupture with Britain. On the face of it, there should not have been any particular problem from American intervention. Britain was, of course, in friendly relations with the United States following the Treaty of Ghent, 1814, and, as seen, the United States shared a framework of international law which valued the principle of ‘non-interference’. In reality, however, there was a potential danger arising from the sympathy many Americans felt for the Canadians involved in a fight with imperial Britain. There was, in the words of Lord
Durham, a natural level of support for the Canadian rebels among many Americans because the ‘contest bore some resemblance to that great struggle of their own forefathers, which they regard with the highest pride’. Radical MPs, too, had similarly warned British 5 ministers regularly about the risk to Canada posed by American citizens. Roebuck, for example, cautioned, at the time of the ten resolutions, that ‘thousands of Americans will re- cross the frontier, and the history of Texas, will tell the tale of Canadian revolt’. Others, 6 such as Leader and Molesworth, predicted, during the rebellions, the intervention of the American people in support of the Canadians, irrespective of the wishes of the United States federal government. There was even a lingering suspicion in the British government that 7
Russell, HC, 16 and 17 January 1838, Vol. XL, 8 et seq., and 96 et seq. . 3
Message from the Crown, 3 May 1839, HL, Vol. LXVII, 756; Russell, HC, 3 June 1839, Vol. LXVII, 4
1260-1274. A bill for the legislative union was introduced in 1840, following a year for consultation in the Canadas: Russell, HC, 23 March 1840, Vol. LII, 1323-1342.
Durham, Report on the Affairs of North America, pp. 96. 5
Roebuck, HC, 6 March 1837, Vol. XXXVI, 1353-1354. 6
Leader, HC, 22 December 1837, Vol. XXXIX, 1436-1445, Molesworth, HC, 22 December 1837, 7
many in the United States wanted to see ‘the British name and power expelled for ever from this continent’. 8
Furthermore, the risk of a conflict with the United States was made more of a concern by the seriousness with which Britain was determined to keep Canada. It was, as seen in chapter 3, a main objective of British policy to maintain Britain’s remaining possessions on the North American continent. British ministers certainly strongly reflected this in their public 9 statements during the period of the Canadian rebellions. The continuation of the link between Canada and the Empire was an underlying theme of the government’s ten resolutions aimed at dealing with failures in Canadian governance in early 1837. The objective, however, became much more explicit during the revolts themselves. Russell offered government ‘support’ for ‘legal efforts to secure the allegiance’ of Lower Canada, and ‘to retain it in obedience to Her Majesty’, almost immediately on first hearing of the rebellions. Furthermore, Parliament itself then swiftly backed ‘the efforts ... for the 10 suppression of revolt’, and expressed ‘deep concern’ at a ‘rebellion’ aimed at ending ‘allegiance to the Crown’. Crucially, too, the government also received the backing of 11 Peel, the then leader of the main opposition in the House of Commons, who commented that ‘it would be the greatest folly on the part of England to allow the connection [with Canada] to be lightly broken’. 12
International law made on impact on British policy to the United States in these
circumstances because legal principles were influential in how Britain publicly justified its objectives in Canada. As seen in chapters 2 and 3, Britain’s aim of maintaining its
possessions on the North American continent was shaped by the general legal duties to preserve and protect the state and its subjects, which were in turn, accepted parts of British
Fox to Aberdeen, FO/5/364, No. 137, 5 December 1841, fols. 208-210. Palmerston even referred to 8
this as a motive for why the United States pursued the disputed territory in the Northeast: Palmerston to Monteagle, 28 October 1842, Palmerston Papers, MO/131.
The five main British provinces were Upper Canada, Lower Canada, New Brunswick, Nova Scotia, 9
and Prince Edward’s Island. For background on their history within the British Empire, see generally, ‘Notes’ upon the Northeast Boundary, The Westminster Review, Vol. 34, (1840), Article VII, pp. 202-237, and ‘North American Boundary Question’, Quarterly Review, (1841), No. CXXXIV, pp. 501-540.
Russell, HC, 22 December 1837, Vol. XXXIX, 1430. 10
Russell proposing the Address: HC, 16 January 1838, Vol. XL, 42, and Address agreed to, 93. 11
Peel, HC, 16 January 1838, Vol. XL, 73. 12
practice. British policy in Canada was, as a result, explained at the time by government in language which was consistent with the international law principle of protection, as well as direct British power interests. Several instances from the associated parliamentary debates illustrate how this was done. Russell, taking the lead for the government in the House of Commons, rhetorically asked whether Britain would leave ‘the subjects of the Crown unprotected’ when introducing the ten resolutions. Again, after the revolts began, Russell 13 emphasised ‘protection to British subjects.’ Similarly, Peel, leading for the Tories, saw 14 the protection of Canada as central to any British response, observing that Britain ‘might at any moment be called upon to defend that colony from all comers ... from a point of honour involving our character as its protector’. Wellington, too, considered deep into 1839 that 15 further defence strengthening was needed in order to provide the necessary ‘protection’ to British subjects. 16
This explanation in the terms of protection mattered for policy towards the United States because it brought British policy towards Canada within the principles of international law, and, thereby, reduced the risk that circumstances would arise which would justify foreign interference. Three factors combined to produce this effect. Most importantly, the
principle of protection permitted a strong defence of Canada within international law, which would itself deter intervention. Russell put this clearly when he said:
But if this country took a timid and pusillanimous tone - if we sacrificed those who looked to us for protection, deserted British subjects who had always been steady and loyal to their allegiance, and withdrew our troops, that they may be overpowered - if we follow so weak and cowardly a course, then we should invite the aggression of foreign Powers. 17
Russell, HC, 6 March 1837, Vol. XXXVI, 1292-93. 13
Russell, HC, 22 December 1837, Vol. XXXIX, 1497. Sydenham, the Governor-General, told 14
Russell in 1841 that Canadians felt ‘that they may rely with confidence upon the entire support and protection of the British Crown’: Sydenham to Russell, Confidential, 10 April 1841, FO 5/372, fols. 165-166.
Peel, HC 14 April 1837, Vol. XXXVII, 1283-1284. 15
Wellington, HL 26 July 1839, Vol. LIX, 872. 16
Russell, HC, 22 December 1837, Vol. XXXIX, 1501. 17
It was also significant, however, that ‘protection’ explained British policy in a way that could counter potential accusations of tyranny or arbitrary rule from London. Such attacks 18 mattered because international law, as conceived, for example, by Vattel, gave a right of foreign intervention to help an ‘oppressed people’ against ‘tyranny’. Whilst British policy 19 countered this accusation mainly through its declared intention to search for a new ‘free’ constitution, protection helped to reduce the risk by, crucially, allowing the British state to act in Canada wearing a cloak of supervisory disinterest within the terms of international law. Apart from the general notions of ‘protection’ from danger as used by Russell and 20 others, British rule was, accordingly, also described as being necessary for the protection of the ‘British’ and ‘French’ inhabitants in the Canadas. As, Stanley observed, if Canada was given up, ‘they cast off in Lower Canada alone 150,000 of their British fellow-subjects, who clung to them for protection against a tyrannical majority’. Conversely, he added, the ‘only 21 security [for the French Canadians] for the absolute laws and feudal customs to which they clung was in the protecting power of this empire’. Consistently with this, Durham saw his 22 duty in Canada as being ‘to extend protection to all.’ [emphasis added]. This use of 23 ‘protection’, therefore, also appears partly to qualify Benton and Ford’s view that, within ‘the British discourse of protection’, ‘protection came to mean both the protection of the Crown ... and protection from the exercise of arbitrary power - even by those authorised to
Hume, for example, sought to characterise the Canadian rebellion as a just response within 18
international law to an ‘arbitrary’ British state, commenting that: ‘Vattel was an author very much quoted now-a-days, and Vattel had said that the people had a right to be well-governed, and at as cheap a rate as possible; and that if the people were deprived of these their inalienable rights by force or fraud, they would be justified in using every means in their power to recover them’: Hume HC, 29 January 1838, Vol. XL, 627. Others made similar attacks; Leader, for example appealed for support from ‘every man who prefers free institutions to arbitrary rule’, and O' Connell declared that ‘necessity was the constant plea of tyrants’: Leader, HC, 6 March 1837, Vol. XXXVI, 1314; O' Connell, HC, 6 March 1837, Vol. XXXVI, 1325.
Vattel, Law of Nations, Book II, S56. 19
The ‘despotic’ power enjoyed by Durham and his successors was considered to have only a 20
temporary place: Russell, HC, 16 January 1838, Vol. XL, 8; Peel, HC 25 January 1838, Vol. XL, 504. The ‘free’ constitution envisaged in the 1830s was, however, distinct from the notion of ‘responsible’ government put forward in the Durham Report of 1839, as British parliamentarians generally struggled in this period with ‘responsible’ government within an imperial context. See, for example, Russell, HC, 6 March 1837, Vol. XXXVI, 1295; Russell, HC, 3 June 1839, Vol. LXVII, 1260-1274; Melbourne, HL, 2 February 1838, Vol. XL, 687; and Stanley, HC, 8 March 1837, Vol. XXXVII, 118.
Stanley, HC, 8 March 1837, Vol. XXXVII, 125. See also Peel, HC, 14 April 1837, Vol. XXXVII, 21
1283-1284.
Stanley, HC, 8 March 1837, Vol. XXXVII, 125-126. 22
Durham, HL, 18 January 1838, Vol. XL, 241. 23
act for the Crown’ - in that it was the actions of the British government in London giving the ‘protection’ of the Crown in Canada that were themselves attacked in Parliament for being ‘arbitrary’. 24
Lastly, protection was often combined with the related notion of allegiance, which then allowed British rule to be presented as, effectively, being the fulfilment of an obligation owed for the loyalty of the Canadians. Chitty certainly made an explicit connection
between the protection due from a state under international law, and the allegiance owed by a subject as a matter of British domestic law, in his note on Vattel’s section on the duty of self- preservation in his 1834 edition of the Law of Nations:
This principle is in every respect recognised and acted upon by our municipal law. It is in respect of, and as a due return for, the protection every natural born subject is entitled to, and actually does, by law, receive from the instant of his birth, that all the obligations of allegiance attach upon him, and from which he cannot by any act of his own emancipate himself. 25
The link between protection and allegiance was also consistent with the way that British politicians tended to indicate that Canada was to remain a British possession because that is what its people wanted. Russell, for example, made clear that he ‘did not look forward to the maintenance of British authority and British dominion contrary to the express wish of the Canadian people’. Similarly, Peel later considered that Canada had ‘to be protected at all 26 risks and against all parties’, in part because ‘the people of the two Canadas had ... declared their intention to stand by that union’. 27
Explanations of British action in Canada in terms of protection and allegiance mattered for policy to the United States because they placed the future of Canada into a context in which the separation of a colony could, at least, be contemplated within international law. Many ministers and other parliamentarians gave credence to this by alluding to the possibility of a peaceful separation of Britain from the Canadas, albeit often in the future. These included,
Benton and Ford, Rage for Order, pp. 87-90. 24
Chitty, Note 15, Vattel, Law of Nations, Book I, S17. 25
Russell, HC, 22 December 1837, Vol. XXXIX, 1500. See also Melbourne, HL, 8 February 1838, 26
Vol. XL, 882-883, who stated that Britain ‘should be able to maintain’ its possessions ‘ not merely by force of arms, but by the good will, the friendly feelings of the inhabitants of those countries’.
Peel, HC, 12 June 1840, Vol. LIV, 1121. 27
for example, Russell, Labouchere, Gladstone, Lansdowne, and Aberdeen. This was 28 important as it implicitly, at least, took account of the American ‘contest’ and the foundation, more recently, of the South American republics, albeit that, as observed by Fisch, in the latter case there had been a contention for ‘an unconditional right to independence for all colonies’ [emphasis added]. It was also significant that others, following Russell’s lead, even made 29 an express link between British rule, and the Canadian wish for allegiance. Peel, for