CHAPTER XI. DIFFERENCE AS TO THE TREATY OF GHENT: AWARD OF THE EMPEROR OF RUSSIA; MIXED COMMISSIONS; DOMESTIC COMMISSIONS. 1. AWARD OF THE EMPEROR OF RUSSIA. During the war between the United States Possession of Slaves and Great Britain of 1812 the British naval by British Forces. forces occupied numerous bays and rivers in the United States, and debarked troops who established posts at various places on the coast, near some of which there was a large slave population. In time these naval and land forces came into possession of a considerable number of slaves, some of whom they received as voluntary fugitives, and others of whom they took in predatory excursions. Others yet were seduced to run away from their masters. On the 2d of April 1814 Admiral Cochrane, commanding His Majesty's forces on the North American station, issued the following proclamation:2 "Whereas it has been represented to me that many persons now resident in the United States have expressed a desire to withdraw therefrom, with a view of entering into his Majesty's service, or of being received as Free Settlers in some of his Majesty's Colonies "This is therefore to give notice "That all those who may be disposed to emigrate from the United States will, with their families, be received on board his Majesty's ships or vessels of war, or at the military posts that may be established upon or near the coast of the United States, where they will have their choice of either entering into his majesty's sea or land forces, or of being sent as Free settlers 1 Précis de la question, ou exposé abrégé du différend qui est survenu par rapport au premier article du traité de Gand, entre les États-Unis d'Amérique et "'Angleterre, avec des pièces justificatives, à St.-Pétersbourg, 1821. 2 Niles Register, VI. 242. to the British possessions in North America or the West Indies, where they will meet with all due encouragement. "Given under my hand at Bermuda this 2nd day of April, 1814. "ALEXANDER COCHRANE. "By command of the Vice Admiral "WILLIAM BALHETCHET.” Though this proclamation was not addressed eo nomine to slaves, yet its meaning and object were manifest. Being widely distributed by the British commanders, it had the effect of attracting a considerable number of slaves, some of whom were transported to the Bahamas or other British possessions, while many remained with His Majesty's sea and land forces at their stations and posts in the United States. This was especially the case in the Chesapeake Bay and at Cumberland Island in Georgia. erty. By Article I. of the treaty of peace concluded Restoration of Prop- at Ghent on the 24th of December 1814 it was provided 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 the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty, or any slaves or other private property." It is to be observed that this provision limits the obligation as to the artillery or other public property to such as was originally captured in the fort or place to be restored and still remained therein. vate Property. After the exchange of the ratifications of Question as to Pri- the treaty on February 17, 1815, commissioners were appointed on the part of the United States to receive and make the necessary arrangements respecting the public and private property in the possession of the British forces. When they came to execute this commission they encountered on the part of the British commanders an opinion contrary to their own as to the construction of the treaty. When applied to by the American commissioners for the restoration of "all slaves, and other private property, which may now be in possession of the forces of His Britannic Majesty," Captain John Clavelle, who commanded in the Chesapeake, replied: "I understand the first article of the treaty relative to private and public property thus, viz,-'All territory, Obligation as to In other words, applying to private property the same limitation as was imposed on the obligation to restore public property, Captain Clavelle took the ground that the treaty meant that only such slaves or other private property should be delivered up as were "originally captured" in the forts or places to be restored, and as should still "remain therein upon the exchange of the ratification of the treaty." At Tangier Island, for example, which had been taken by the British during the war, the British forces refused to restore the slaves then in their possession because they were not originally captured there. Still less, they said, could they give up negroes on board of British men of war. Such negroes not only could not be said to remain in the forts or places where they were originally captured, but by entering into the British service they had made themselves free. The same rule was applied as to slaves in Georgia, Louisiana, and elsewhere. Slaves originally taken and still remaining at the place where they were found at the exchange of the ratifications of the treaty were delivered up; but those that were taken or received from other places, or carried or received on board of men of war, before the exchange of the ratifications, were not delivered up.' 1Am. State Papers, For. Rel. IV. 106. A similar question arose under the treaty of peace of 1783. (Supra, p. 273, Am. State Papers, For. Rel. I. 122, 123, 485.) It was merged in the Jay Treaty of 1794. (S. Ex. Doc. 46, 31 Cong. 1 sess.; Am. State Papers, For. Rel. I. 518.) In Georgia many negroes came into the possession of the British at Cumberland Island, which was fortified by Admiral Cockburn after the battle of New Orleans. (Brenton's Naval History, V. 203.) A British periodical in 1815 published the report that "an officer of rank" had restored 150 negroes in Georgia "contrary to the faith" of Admiral Cochrane's proclamation. It commented upon the alleged restoration as "an extraordinary transaction." (The Naval Chronicle, XXIV, 213.) Position of United The Government of the United States maintained that there was in the treaty a clear distinction between the obligation as to public and that as to private property, and that the stipulations applied to the one could not be wholly applicable to the other. The treaty provided that there should be no "destruction or carrying away any of the artillery or other public property or any slaves or other private property." The stipu lation as to the destruction of public property was, said the United States, wholly inapplicable to slaves. It not infrequently happened that, in surrendering territory by a treaty of peace, the party withdrawing stipulated a right to destroy the fortifications in its possession and to carry away or destroy the artillery and munitions of war in them; but it was believed that no example could be found of a stipulation to authorize the destruction of private property of any kind, especially slaves. Equally strange would be a stipulation not to destroy them. Moreover, if slaves and other private property were placed on the same footing as artillery and other public property, the consequence would be that all would be carried away. Few, if any, of the slaves were taken in forts or other places where the British troops happened to be at the exchange of the ratifications. The fact was well known to the negotiators of the treaty that the greater number if not all the slaves referred to were taken from proprietors inhabiting the country bordering on the bays and rivers emptying into the Atlantic Ocean. The United States, it was insisted, were "entitled to all the slaves and other private property which were in the possession of the British forces, within the limits of the United States, on the exchange of the ratifications of the treaty, whether they were in forts or British ships of war."1 The United States also maintained that it Protocols at Ghent. was shown by the protocols of the conferences at Ghent that it was not the intention of the treaty to apply to private property the limitations affixed to the duty to restore public property. In the first project of the treaty, which was presented by the American plenipotentiaries, there was the following passage: "All territory, places, and possessions, without exception, 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 artillery or other public property, or any slaves or other private property." The British plenipotentiaries returned this project with the following alteration or counter proposition: "All territory, places and possessions, without exception, belonging to either party, and taken by the other during the war or which may be taken after the signature of this treaty, shall be restored without delay and without causing any destruction, or carry. ing away any artillery or other public property, or any slaves or other private property, originally captured in the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty." The American plenipotentiaries, on examining this clause, proposed to transpose the words "originally captured in the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty," so as to place them after the words "public property." This proposal the British plenipotentiaries agreed to, and the treaty was so drawn. The United States claimed that the history of the stipulation, as thus disclosed, rendered it clear that the limitation, originally proposed by the British plenipotentiaries, upon the restoration of private as well as of public property was by the treaty confined to public property, and that the obligation to restore slaves and other private property was unaffected by it. Position of Great On the other hand, the British Government maintained that the construction contended for by the United States would release the stipulation respecting private property from all the conditions under which public property was to be restored; that if the words "carrying away" applied to private as well as to public property, it was entirely arbitrary to say that the intervening words did apply to the one but did not apply to the other, though the words "carrying away" grammatically governed both; that while the stipulation against the destruction of property certainly applied to private property other than slaves, the question whether it applied to slaves was immaterial, since the point in dispute related solely to slaves carried away; that if the arbitrary construction contended for by the United States were admitted, there would be no limitation as Am. State Papers, For. Rel. III. 755. 2 Am. State Papers, For. Rel. III. 742. |