In reply to Grenville's argument Jay divided the subject of the Negroes into three groups: first, the Negroes captured or disposed of during the course of the war; second, the Negroes who remained with and belonged to American citizens within the British lines; and third, the Negroes who, confiding in the promise of freedom, fled from their masters and took refuge with the British. Concerning the first two groups, no extended discussion followed. Grenville stated, however, in regard to the second group, that he was "not so sure." The last-named group on the other hand, produced much pourparler, for Jay maintained that these Negroes were "clearly comprehended by the terms of the treaty." According to his argument, Negroes could not by "mere flight" alter their slave character. He soon appreciated the difficult position of England in trying to keep the pledges of freedom offered to the Negroes and at the same time fulfill, according to the American interpretation, the article of the treaty in regard to the return of Negroes.

During the negotiation Jay admitted, moreover, that the carrying away of Negroes was justifiable in view of the promises of freedom and protection promulgated by British military representatives.[47] He concluded, however, with the thought that "Great Britain ought not to expect to escape the consequence of the folly of her Generals in America." For this reason he restated the idea expressed by other American representatives to Great Britain, that compensation should be obtained for the Negroes carried away. In spite of Jay's change of position Grenville persisted with unyielding opposition in the view that such slaves were no longer American property. "On this point"

wrote Jay to Randolph, "we could not agree."

Concerning this question, Jay said, moreover,[48] that "various articles have been under consideration but did not meet with mutual approbation and consent." Sensing the situation Randolph declared to Jay, December 3, that he was extremely afraid that the reasoning of Grenville about the Negroes would not be satisfactory. "Indeed I own,"

said Randolph, "that I can not myself yield to its force." Randolph knew of the anti-British sentiment in the South and realized that the treaty would be opposed by the South because that section would feel that it had been neglected,[49] should it receive no compensation for the Negroes carried away by the British.

In a communication to Jay two weeks later it is obvious that there was no concerted opinion even in America in regard to the much mooted question. Jay and Randolph, for instance, differed as to whether the slaves concerned ever became the property of Great Britain. Jay held that the Negroes in question never became the property of Great Britain whereas, Randolph held that while property is acquired in movables as soon as they come within the power of the enemy, yet "property rights thus acquired in war may by the treaty of peace be removed."[50]

To the contention of Great Britain that the Seventh Article meant merely an engagement against further depredations, Randolph declared the stipulation "superfluous"; for he maintained that the mere cessation of war meant that much. To this point, Grenville declared the treaty "odious," if the stipulation were interpreted to include Negroes who sought British lines under the promise of freedom and protection "on the basis of common morality." Great Britain was not to be expected to execute a stipulation with such an interpretation.

Obviously, then, Great Britain would not recede from her position.

Citizens of America, especially those deprived of their property, were beginning to think that our diplomatic relations were not properly taken care of by Jay. Expressions of disapproval of the treaty by resolutions in the Senate evinced the temper of the people. Jay, in the meantime was called "traitor"; his mission was declared a failure and the treaty was attacked from many sides.

At this juncture special mention must be made of the objections of the southerners on the ground that the treaty did not provide for the return of their property, while the objection of the North was not so pressing. In fact, northerners acquiesced in the opinion of Hamilton who had substantially the same view that Grenville had.[51] Thus we see the first glimpse of the North becoming estranged from the South because of the difference of opinion in regard to the Negro.

The leading source of dissatisfaction of the treaty of Jay seemed to be a failure to get compensation for the Negroes carried away by Great Britain. The stipulation, moreover, was not definite, for many constructions could be placed upon it. The words of the treaty, moreover, were too vague and uncertain to express accurately the intention of the signers. Whether Negroes whom the British carried away could any longer be considered American property, seemed to be the crux of the situation. Although no definite settlement could be reached by the two nations, authorities of international law[52] give the case to Great Britain. One rule which was recognized by the foremost nations of the world was to the effect that a slave escaping in war becomes free. Concerning this Halleck says that such slaves cannot be regained by their former masters.[53] Woolsey says that "a slave sojourning to a free land cannot be treated as his master's property--as dest.i.tute of jural capacity." To the same purport, Heffter says "in no case is a state bound to allow the slavery which subsists in others." Dana, in his edition of Wheaton's _International Law_ supports this contention.[54]

Dissatisfied with results but not discouraged, however, Washington appointed commissioners, December 7th, 1798, to work with commissioners from Great Britain and proceed with the infractions of the treaty. A short time thereafter President Adams in an address to Congress, November 23, 1797, reported that several decisions on the claims of citizens of the United States for losses and damages sustained by reason of irregular and illegal captures or condemnations of their vessels or other property had been made by the commissioners in London, conformably to the Seventh Article of the Treaty. "The sums awarded by the Commissioners," said he, "have been paid by the British Government; a considerable number of other claims where costs and damages and not captured property were the only objects in question have been decided by arbitration, and the sums awarded to the citizens of the United States have also been paid."[55] These decisions served to allay the discontent in America. Still later, Adams informed Congress that "such progress had been made in the examination and decision of cases ... which were the subject of the Seventh Article that it is supposed the Commissioners will be able to bring their business to a conclusion in August of the ensuing year."[56]

No account of the final settlement of these claims, however, is found in the sources. Dissatisfaction became more intense. Claimants were pressing on all sides for a fair compensation for the loss of their property. So serious was the situation that the House of Representatives went beyond its accustomed limitation and discussed in 1798 the treaty-making power of the United States. Pressure had been brought to bear upon the representatives of the people because the Jay Treaty had been ratified by the President and Senate and it did not contain a provision covering the return of the Negroes.

Further efforts, nevertheless, were made to adjust the differences between the two countries. They, however, were of little avail. The Republican policy of Jefferson which this country strictly followed from 1801 to 1809 had as its basic principle that governments ought to do as little as possible. Hence our army and navy were cut down to the extent that the American Government could not a.s.sert itself against foreign encroachment. Particularly in 1804 our relations with Great Britain became worse when the Jay Treaty of 1794 by agreement was allowed to expire. To compel Great Britain to come to terms Congress enacted a non-important act which never had the desired effect.

Soon thereafter the continental system and the paper blockade engaged the attention of the American Government. Negotiations had failed.

Great Britain would not make a treaty. The acc.u.mulation of injuries called for action of some kind. To yield and say nothing meant to give up the rights of an independent nation. For this reason Jefferson introduced in 1807 the Embargo with which he hoped to force France as well as Great Britain to come to terms--to recognize the United States as a "free sovereign and independent nation." Meanwhile a spirit of nationality was developing in the country. Soon thereafter war was declared and waged against Great Britain to win the respect and honor which every nation deserves.

In this state of war the provisions of the Treaty of Paris and the Jay Treaty were nullified. In response to an inquiry as to whether these treaties, so far as they were not fully executed, terminated by the War of 1812, the British Department of State in a communication replied that "with respect to the treaties you are informed that they were claimed by Great Britain at the conclusion of the Treaty of Ghent to have terminated by the War of 1812."

Against this view the United States protested. In the decision of the Supreme Court of the United States in the case of the Society for the Propagation of the Gospel v. the Town of New Haven, the view was expressed that provisions of a treaty remain in full force in spite of war.[57] The general rule of inter-national law, however, is that war terminates all subsisting treaties between the belligerent powers.[58]

The United States, moreover, soon acquiesced in this view, for President Polk in his message to Congress, December 7, 1847, said, "a state of war abrogates treaties previously existing between the belligerents."[59] Great Britain then was legally excused by the best authorities of the world from executing fully the provisions of the Treaty of 1783 and the Jay Treaty of 1794.

As a result, the same policy in regard to the carrying away of Negroes was followed during the War of 1812.[60] While the British forces were occupying the forts and harbors of the United States, Negroes came within their possession. Many were induced to run away while others were captured in battles. From the Dauphin Islands-possessions claimed to be without the limits of the newly acquired Louisiana territory the British carried away slaves. In fact, from whatever places the British occupied they carried away Negroes. Many Negroes came also into the possession of the British by the proclamation of Admiral Cochrane of Great Britain, April 2, 1814, setting such loyal adherents free. In effect, this proclamation extended an invitation to all persons desiring to change their slave status. Although the proclamation[61] did not specify the Negroes, the meaning and object of Admiral Cochrane was evidently to bring Negroes within the British lines. Many, to be sure, responded to the proclamation. As many more, no doubt, were carried away from the United States by the British under the veil that they were captives in the war and, therefore, no longer the property of American inhabitants.

With victory a.s.sured and the representatives of Great Britain and America a.s.sembled in Ghent, July 11, 1814, one of the first questions for the commissioners to consider was evidently the return of the Negroes. This question had primary consideration in the final draft of the Treaty of Ghent. By the first article of the treaty it was provided that "all possessions whatsoever taken by either party during the war or which might have been taken after the signing of this treaty shall be restored without delay and that these possessions should not be destroyed." It specified, moreover, that artillery, public and private property, originally captured in the forts of the United States should not be carried away.[62]

Negroes were carried away by the British forces after the treaty was signed as well as before. In Georgia many Negroes came into possession of the British at c.u.mberland Island fortified by Admiral c.o.c.kburn.[63]

In a letter dated November 22, 1914, Joseph Cabell gave evidence to support the above-mentioned facts when he declared that he was on board a British squadron in Lynnhaven Bay at the time Major Thomas of York attempted to recover his Negroes, who had gone off to the British and that the destination of the Negroes on board the ships was a subject of curiosity and concern. Soon, however, he learned that they were to be sold in the Bahamas.[64] From another reliable source comes the information that a shameful traffic had been carried on in the West Indies.[65] Secretary Monroe presented to the Senate, moreover, an affidavit of a Captain Williams who had been a prisoner in the Bahamas for some time. In this he declared that he had been present at the sale of Negroes taken from the vicinity of Norfolk and Hampton.

"This affidavit," said Monroe, "was voluntarily given and the facts have been corroborated by a variety of circ.u.mstances."

Such information was given in the Senate. In discussing the ratification of the treaty the Senate suggested that commissioners be appointed to carry into effect the first article. In line with this view John Quincy Adams, Henry Clay, and Albert Gallatin were authorized to supervise the execution of this article. In a communication to Secretary Monroe, Feb. 23, 1815, the commissioners reported that "all slaves and other private property are claimed to be delivered up."[66]

So much progress in so short a time was remarkable. To adjust all the claims in an amicable way would hardly occur. It was soon learned by the commissioners that "all slaves and other private property" were delivered up by the British using as their guide a different construction of Article I. "The construction," Monroe said, "ignored the distinction which existed between public and private property."

Had it been intended he continued, "to put slaves and other private property on the same ground with artillery and other public property the terms "originally captured in the said forts or places which shall remain therein on the exchange of the ratification of the Treaty"

would have followed at the end of the sentence after "slaves and other private property."[67] With their construction, he contended that both interests, the public and private would have been subject to the same limitation. Besides, Monroe held that the restrictive words immediately following "artillery and other public property" was not intended to include the words "slaves and other private property." If "the slaves and other private property" are placed on the same footing with artillery and other public property, "the consequences must be that all will be carried away."

Monroe learned, furthermore, that Mr. Baker, Charge D'affaires of Great Britain, had placed another construction on Article I of the treaty. In this new construction he had made a distinction between slaves who were in British ships of war in American waters and those in the ports held by British forces at the time of the exchange of ratifications.[68] Monroe and the commissioners, on the other hand, were of the opinion that the United States was ent.i.tled to all slaves in possession of the British forces within the limits of the United States forts or British ships of war. Concerning this opinion Baker wrote April 3, 1815, that it could not be shown that Monroe's construction was sanctioned by the words of the Article. "If this construction had been known then," he remarked, "we would have decidedly objected to it and proposed others."[69]

Accessible reports indicate that the governments of Great Britain and the United States persisted in the constructions given by their respective representatives. Clavelle, the Commander-in-Chief of the British forces in the Chesapeake, claimed that the treaty meant only such slaves or other private property should be delivered up as were "originally captured in the forts or places to be restored." In conformity with their construction of the Article, Clavelle refused furthermore to restore the slaves taken from Tangier Islands, because they were not originally captured there. The United States, on the other hand, was of the opinion that the country was ent.i.tled to all slaves within its limits on the exchange of the ratifications of the treaty. The United States believed, finally, that the carrying away of Negroes applied to both kinds of property because the word was common to both descriptions.

By the usage of civilized nations in cases of invasion private property with the exception of maritime captures was respected. This meant, in effect, that none could be lawfully taken away. Influenced by this usage Great Britain receded from her position and declared that the claim of the United States to indemnification for her slaves--had never been resisted. In the meantime Great Britain declared April 10, 1816, that she could not consider any property which had been previous to ratification of the treaty removed on shipboard as "property forming a subject for a claim of restoration or indemnification." In spirit, these two declarations were contradictory. Besides they made the subject more difficult and puzzling.

In the meanwhile the work of the commissioners continued. In their efforts to take an inventory of the slaves so that the claims might be adjusted, they encountered the opposition of Clavelle and c.o.c.kburn. It was clearly evident that the efforts of the commissioners would be of no avail. More coercive means were necessary to settle such an extended and controversial question. In a convention of commerce between Great Britain and the United States October 20, 1818, representatives realized that an agreement in regard to the Negroes was hardly possible. The representatives from the United States, therefore, offered to refer the differences to some friendly sovereign or State to be named for that purpose. They agreed further to consider the decision of such a friendly sovereign or State to be "final and conclusive."[70]

Very soon thereafter the Emperor of Russia offered to use his good offices as mediator and after a short discussion, his proposal was accepted. To this end there was concluded on June 30, 1822, a convention in which the adjustment of the claims for indemnity was left to a mixed commission. This action was followed by desultory and extended discussions which terminated, nevertheless, in the final disposition of the controversy. The point of difference was decided in favor of the United States. In handing down his decision the Emperor held that the limitations as to the rest.i.tution of public property bore no relation to private property. In effect, he said that the treaty prohibited the carrying away of any private property whatever from the places and territories stipulated in Article I of the Treaty of Ghent. He contended that "the United States was ent.i.tled to consider as having been carried away all slaves who had been transported from those territories on board of English vessels within the waters of American territories and who for that reason had not been restored."[71]

In compliance with the decision of the Emperor of Russia a mixed commission, one commissioner and one arbitrator from Great Britain as well as the United States met July 30, 1822, at Washington, D.C., under the Emperor's mediation.[72] For the United States Langdon Cheves was the commissioner and Henry Sewell the arbitrator; for Great Britain George Jackson was the commissioner and John McTavish the arbitrator. George Hay was appointed, also, by the President of the United States to give such information and support that might be needed since individual claimants could not be present. The purpose of the commission was to prove the average value of the Negroes at the time of the ratification of the treaty and to determine the validity of individual claims. In the event no agreement could be reached recourse was had to the Emperor of Russia whose decision would be "final and conclusive." This action was insisted upon by America, whereas Great Britain persisted in refusing to submit such matters to the Emperor. Their progress, as a result, was not very marked. In considering the "definitive lists"[73] of claims these commissioners encountered many more doubtful and intricate problems. Claims not contained in this list were not to be taken cognizance of; nor was the British government required to make compensation for them. With respect to compensation, Great Britain promised to produce all evidence which was in the possession of her naval and military officers concerning the number of slaves carried away. It was provided by the commission that no payment was to be made within twelve months.

September 11, 1822, the board unanimously agreed on the average value of slaves as follows:

Each slave from Louisiana $580 Each slave from Georgia, South Carolina, Alabama 390 Each slave from Maryland, Virginia and other States 280

The next difficulty of the board occurred in regard to the allowance of interest on claims. Concerning this point, Cheves held that a reasonable compensation for the injury sustained should have been granted. "A just compensation," said Cheves, "is the reestablishment of the thing taken away with an equivalent for the use of it during the period of detention." In reply to this Jackson held that the convention of 1822 did not grant the commissioners the power to fix interests and, besides, that interests not being a part of the debt could not be allowed. Realizing the futility of his claims Cheves offered to submit the difference to arbitration, but Jackson declined.

Equally difficult questions arose in regard to the slaves taken away from Dauphin Island in Mobile Bay.[74] This island, controlled by the British during the war, was later surrendered to the United States.

Concerning this Jackson held that it was not legally at the time of the ratifications of the treaty a part of the United States, that is, it was not a part of Louisiana but belonged to West Florida, which was not ceded to the United States until 1819.[75] In regard to this Cheves offered to refer these claims to arbitration, but in this view Jackson refused to acquiesce. The situation did not become any better even when Rufus King was sent as our minister to England to succeed Henry Clay who became John Quincy Adams's Secretary of State.

Continued disagreement of the representatives of Great Britain and the United States resulted. Their failure to agree upon the provisions of the Convention of 1822--that matters under dispute be referred to arbitration made the work of this convention of little avail. Clay's offer of settlement was not favorably received in Great Britain. As to a basis of compromise, Clay said that the "total number of slaves on the definitive list was 3,601; that the entire value of all the property for which the indemnity was claimed including interest might be stated at $2,693,120." Realizing that this large sum would never be secured, Clay suggested that $1,151,800 might be used as the minimum in the negotiation. He used as a guide the fact that Parliament had appropriated 250,000 pounds to cover the awards of the commission.

This sum, Mr. King observed also, was nearly the sum mentioned as a minimum by Clay in his instructions to him. Even with this information, the commissioners made little progress.

On the other hand, Mr. Vaughan, the British Envoy at Washington, said April 12, 1826, "that His Majesty's Government regretted to find themselves under the absolute impossibility of accepting the terms of compromise offered by the envoy from the United States in London." He did not admit, moreover, that the question of interest should be referred to arbitration, but maintained that the demand was unwarranted by the convention and unfounded by the Law Officers of the Crown.[76] In reply to his observation, Clay informed Vaughan of the fact that Great Britain's representatives had refused to refer many questions to arbitration and that if this refusal to cooperate in this regard should be upheld it would virtually be making him the final judge of every question of difference that arose in the joint commission.[77] This disagreement continued until 1825, when the commissioners met to collect and weigh evidence.

Soon thereafter, Albert Gallatin, who had been appointed Envoy of the United States to London, was authorized to treat with Canning on the oft-discussed question. During the first interview he discovered that, while there was a great reluctance to recede from the ground already taken by Jackson, there was also a disposition to settle that controversy.[78] Following the instructions given to King, Gallatin used the 250,000 pounds as the basis of settlement. This sum he was authorized to accept. He, however, did not make this offer known immediately but waited for the formal offer of $1,200,000 from the British Government; and in conformity with his instruction of a later date, Gallatin offered as an ultimatum an acceptance of $1,204,960, which the British Government reluctantly agreed to pay.[79]

On November 13, 1826, a convention to carry out this agreement was concluded. The amount specified above was to cover all claims under the award of the Emperor of Russia. It provided, moreover, that the money was to be paid in Washington, in the current money of the United States, in two installments; the first twenty days after the British Minister in the United States should have been officially notified of the ratifications of the convention, and the second August 1, 1827. In this way the convention of 1822 was annulled, save as to the two articles relating to the average value of slaves which had been carried into effect, and as to the third article as related to the definitive list which had also been carried out.[80] This ended the work of the board. After ratification had been exchanged the board adjourned, March 26, 1827.

This left one more matter to be disposed of, that of executing the provisions of the commission of 1826. In compliance with this Congress pa.s.sed an act, March 2, 1827, to carry out this agreement.[81] A convention was thereby called to meet in Washington July 10th and proceed with the consideration of claims, "allowing such further time for the production of evidence as they should think just." As soon as the claims were validated and the princ.i.p.al amounts ascertained seventy-five per cent of the princ.i.p.al was paid with the explanation that when all claims were settled, the other twenty-five per cent would be paid, if the fund permitted it. If it did not, then the remainder would be distributed in proportion to the sums awarded. In these negotiations, Langdon Cheves and Henry Sewell, who had only recently represented the United States in London, together with James Pleasants of Virginia, were appointed commissioners. They considered not only the claims on the definitive list but also those deposited in the Department of State and which had not been previously adjusted.

The conflicting interests of payments and the inconclusive evidence which were presented made the work of this convention more difficult.

The records were very poor and contained little of the information desired. For this reason many claims were denied; especially was this true in Maryland and Virginia.[82] Many of the claimants of other States nevertheless were compensated. Seventy-five per cent was granted them, the sum totalling $600,000 being paid. This condition of affairs caused a clash among the 1,100 claimants, 700 of whose pet.i.tions on the definitive list were examined. Many other claimants were seeking evidence to secure compensation. They were not successful, however, for Cheves opposed the admission of hearsay testimony as well as the testimony of slaves. Well informed as to the progress of the commission, Congress pa.s.sed an act May 15, 1828,[83]

specifying August 31st as the last day on which the commission would meet. Of that entire amount awarded $1,197,422.18 had been paid to the claimants. The remaining sum was "distributed and paid ratably," to all the claimants to whom compensation had been made. The work of the Convention of 1827 thus ended.

ARNETT G. LINDSAY

FOOTNOTES:

[1] This dissertation is the result of the researches of Mr. A. G.

Lindsay under Dr. C. G. Woodson at Howard University during the academic year 1919-1920 and was submitted to the Committee on Graduate Studies in candidacy for the degree of Master of Arts. Dr. C. G.

Woodson was the chairman of this committee.

The following sources were used in the preparation of this ma.n.u.script: _American State Papers, Foreign Relations_; _American State Papers, Confidential Doc.u.ments_; _American State Papers_, Wait's Edition; _Annals of Congress_; _Diary of John Quincy Adams_, in his _Memoirs_; _Diplomatic Correspondence_; Force, _American Archives_; _Journals of Congress_; _Journals of Continental Congress_; McDonald's _Source Book of American History_; _Niles Register_; _Treaties and Conventions_, Edition 1889; _United States Statutes at Large_.

The following works were also consulted: John Adams, _Works_; Van Tyne, _The American Revolution_; _American Historical a.s.sociation Reports_; Babc.o.c.k, _Rise of American Nationality_; Benton, _Naval History of England_; Channing, _History of the United States_; Ford, _Washington's Writings_; Ford, _Jefferson's Writings_; Fiske, _Critical Period_; Gibb, _Administrations of Washington and Adams_; _The Journal of Negro History_; Morse, _John Adams_; _Naval Chronicle of England_; Ramsay, _History of South Carolina_, Edition, 1809; Sparks, _Washington_; Moore, _International Arbitration_; Moore, _Digest of International Law_; Wharton, _Digest of International Law_, Edition, 1887; Halleck, _Elements of Law_; Wheaton, _Elements of Law_, Edition, by Dana.

[2] Ramsay, _History of South Carolina_, Edition, 1809, Vol. I, pp.

474-475.

[3] _American Historical a.s.sociation_, Vol. I, p. 273. F. A. Ogg, _American State Papers_, Vol. IV, p. 304.