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NEGOTIATIONS WITH GREAT BRITAIN CONCERNING PAYMENT FOR SLAVES, AND SLAVE TRADE.
Singular controversy respecting first article in Ghent treaty concerning the removal of slaves-Very difficult to make a treaty not leading to controversies-Explanation and discussion of the subject-Parties disagree-Referred in 1818 to Emperor of Russia-Decides for the United States-Number of slaves removed-Average and total value -England paid $124,960 as indemnity-Cheves and Pleasants, commissioners-Parts of United States first to abolish slave tradeUnited States first to declare it piracy-Proceedings of American government on this subject very honourable-England negotiates with powers of Europe for abolition-Efforts at Vienna and other congresses-Declaration of the eight powers-Evasive-No slave trade permitted in 1820 north of the Equator-Only by the Portuguese south-Still, great trade—80,000 slaves removed in one year-French flag much employed-In 1818 England proposed a convention to United States-Not accepted on account of constitutional difficulties-House of Representatives authorize President to negotiate with European powers-Propose convention to England-That country declares slave trade piracy-Convention agreed on-Provisions— Allows right of search-Dangerous-Discussion of that topic-Senate finally reject the convention-Not for right of search-ReasonsLast official act of the government-Not a local question.
In the course of 1815, a singular controversy suddenly arose, as to the meaning of a short clause in the first article of the treaty of peace with England, concluded at Ghent in December of the previous year. It is, in every way, remarkable, that an instrument of so brief and simple a nature, prepared by parties, both using the same mother tongue, studiously excluding from the terms of the contract the complicated and vexatious questions of colonial trade and neutral
and belligerent rights, should have led to discussions, so wearisome and, in the end, unprofitable. But the experience of the United States has shown, thus early, the extreme difficulty of hitting upon phrases and expressions, even where the stipulations are most obvious and arbitrary, that shall escape the refinements of diplomatic criticism. We have a striking specimen of this sort of metaphysics in the treaty of "78 with France, and of '83 with England, but, perhaps, the most notable instance is that of '95 with Spain, concerning the cession of Louisiana. Indeed, in the case of several of these instruments, it has taken more time to explain than negotiate them.
On the present occasion, it does not appear, there was much ground for difference of opinion. The first article of the treaty stipulated that,
"All territory, places and possessions whatsoever, taken by either party from the other during the war, or which may be taken after the signing of this treaty, shall be restored without delay, and without causing any destruction, or carrying away any of the artillery or other public property originally captured in said ports or places, and which shall remain therein upon the exchange of the ratifications of this treaty, or any slaves or other property."
The phraseology of this sentence is loose, though the meaning appears sufficiently obvious. The apparent obscurity, undoubtedly, arises from an attempt to render the article too concise, and to crowd within the same general stipulation several sorts of property, captured and detained in a variety of ways. The whole difficulty would have been avoided if the paragraph had ended at the words, "the treaty," and a new sentence been framed to meet the condition intended to apply to the concluding words, " or any slaves or other properly." But under this article the British officers refused to deliver the slaves, because, as it was not intended to prohibit all private property from being carried away from the places restored, some limitation was necessary;—and the same limitation was made to apply to public as well as private. The construction of the English government was this;-all slaves, or other private property, originally cap
tured in said places, and which shall remain therein upon the exchange of the ratifications of this treaty, shall not be carried away, or destroyed. The stipulation required, that places should be restored without causing destruction or carrying away private property.-What, therefore, was not in the place to be restored, at the time of the ratification, could not be carried away, or destroyed. The distance, to which the property was removed, or the time of its removal, could not impeach the soundness of this argument. It should, also, be observed, that the demand of the American government is not a full, unconditional restitution of all private, or public property. It does not apply to private property, taken in such places at all times, but only to such as belonged originally to those places, and remained within the limits of the United States at the time of the ratifications. Therefore, in the American construction, the words, "carrying away," apply to public as well as private property;—these words govern both parts of the sentence. Of course, it is arbitrary to contend, that the intervening expression should be made to apply to one and not to the other description of property. But this construction is, in fact, more extensive than the one, for which the United States contended, because wherever private property might be captured, without regard either to time or place, it must be restored, if within the limits of the United States, at the ratification;-neither could any property have been carried away at any time of the war, without violating this article. This construction would, therefore, justify claims on the part of the American government, which it could not be their intention to maintain, and which they have never developed.
We shall state in a single paragraph the construction of the United States.
"The stipulation in the article amounts to this, that each party shall restore without delay, all the territory, places and possessions, which had been taken by it with the exception of certain islands that neither shall destroy or carry away artillery or public property, provided they be, at the time of the exchange of ratifications, in the forts, or places, in which they were originally cap
tured that neither shall carry away slaves, or other private property. The restraint, provided against the carrying away of the latter, is evidently connected with the great object of this article, the restoration of territory, places and possessions, and not with forts and places in the qualified sense suggested; in which sense it applies to artillery and other public property only, the ordinary and proper appurtenances of forts and other military posts."
The restrictive expression, being put after artillery and other public property, proves it was intended to apply to that alone; otherwise it would have been much more natural and more in conformity with the idiom of the language to have placed the whole at the end of the sentence. The slaves, in question, were not taken in forts or other places, where the troops happened to be at the time of the ratification-they came originally from the country, and shores of the deep and numerous bays along the southern coast. This fact was well known to the commissioners of both nations; it is not, therefore, to be supposed, that the parties could have agreed to a stipulation without meaning. As the article stipulated that slaves should not be carried away from the places captured, it seemed a gross inconsistency to remove, under the sanction of the provision, all slaves in possession of the British. The article was intended to protect private property, not subject to capture by the laws of war. No difficulty existed as to the artillery, found in the ports and places captured-it could easily be ascertained;-but the case was widely different with the slaves. Another design of the stipulation is very obvious, the time when public property could be carried away was limited, that is to say, it could not be removed, if in the forts at the time of the exchange of ratifications, but there was no limitation in regard to private property. Apart from the grammatical construction of this particular phrase, there are some general considerations, applicable to a state of war, which may be introduced in a collateral way, to assist in a right determination of the discussion.
The distinction between private property on land and at sea is well recognised. Wherever slaves were induced, by
proclamation, to leave their plantations, it was a manifest deviation from the usages of war; they are considered, in all general laws of nations, and in the particular ones of this country, to be moveable possessions, and unlike private vessels, captured at sea, they are not liable to confiscation. Among the ancients, prisoners of war were made slaves; but in modern times, slaves, the property of individuals, are exempted from sequestration.
A correspondence on this subject was continued, at intervals, till October 1816, when Lord Bathurst informed the American minister at London, that the British government intended to adhere to their interpretation of the treaty.
In the commercial convention, concluded with England in October 1818, the two powers agreed to refer the matter of the slaves, claimed under the treaty of Ghent, to the decision of a friendly power. The Emperor Alexander of Russia, actuated by that spirit of amity and obliging interest, he had ever manifested in all the concerns of the United States, and at that time on the best terms with Great Britain,* consented to perform the valuable office of a mediator. Satisfied of the impossibility of coming to a satisfactory result in its negotiations with England, no other disposition of this vexatious business could have been so agreeable to this country. All the documents, relating to the matter, and the argument of the parties, having been, shortly after the convention in London, submitted to the examination of the imperial government, the opinion of the Emperor was communicated in April 1822, to Mr. Middleton, American minister, by count Nesselrode, secretary of state, directing the imperial administration of foreign affairs of Russia. The award was in these words:
"Invited by the United States of America and by Great Britain
* See convention of St. Petersburg of July 12, 1822. This instrument is not recited in this place, as it simply contains the consent of the Emperor to become a mediator, and regulates the details of the commission. It was signed for the United States by Henry Middleton, for Great Britain by Charles Bagot and for Russia by M. M. de Nesselrode and Capodistrias.