INDEMNITY FOR SLAVES CARRIED AWAY BY THE FORCES OF GREAT BRITAIN IN 1815.
COMMUNICATED TO THE SENATE, IN EXECUTIVE SESSION, DECEMBER 31, 1827.
To the Senate of the United States:
In compliance with a resolution of the Senate of the 14th instant, requesting a communication of the instructions to the American Minister at London for the negotiation of the convention of November 13, 1826, with Great Britain, for indemnity to the claimants under the first article of the treaty of Ghent, together with the letters of the minister accompanying and explaining the said convention, I transmit herewith a report from the Secretary of State, together with the documents desired.
JOHN QUINCY ADAMS.
Washington, December 24, 1821.
Department of State, Washington, December 21, 1827.
The Secretary of State, to whom has been referred by the President of the United States a resolution of the Senate of the 14th instant, requesting "the President to lay before the Senate the instructions to the American Minister at London for the negotiation of the convention of the 13th November, 1826, with Great Britain, for indemnity to the claimants under the first article of the treaty of Ghent, together with the letter of the minister accompanying and explaining the said convention, or so much thereof as may be communicated without injury to the public interest," has the honor to submit to the President copies and extracts from the letters of instructions to the American Minister at London upon the subject embraced by the resolution, together with a copy of the letter of Mr. Gallatin, the minister who negotiated the convention in question, and which accompanied and explained the same; and the copy, likewise, of a correspondence between the British Minister here and this Department, which is deemed to be within the purview of the said resolution.
List of papers transmitted with the foregoing.
Mr. Clay to Mr. King, instructions, dated May 10, 1825. (Extract.)
Same to Mr. Gallatin, dated June 21, 1826.
Mr. Vaughan to Mr. Clay, dated April 12, 1826.
Mr. Clay to Mr. Vaughan, dated April 15, 1826.
Mr. Vaughan to Mr. Clay, dated April 17, 1826.
Mr. Clay to Mr. Vaughan, dated April 19, 1826.
Mr. Vaughan to Mr. Clay, dated September 20, 1826.
Mr. Clay to Mr. Vaughan, dated October 12, 1826.
Mr. Vaughan to Mr. Clay, dated October 13, 1826.
Mr. Clay to Mr. Gallatin, dated October 12, 1826. (Extract.)
Mr. Gallatin to Mr. Clay, dated November 13, 1826.
Extract of a letter from Mr. Clay to Mr. King, dated Department of State, Washington, May 10, 1825.
(For this letter see page 339 of this volume.)
Letter from Mr. Clay to Mr. Gallatin of the 21st of June, 1826.
(For this letter see page 343 of this volume.)
Mr. Vaughan to Mr. Clay.
Washington, April 12, 1826.
Sir: I have received instructions to make known to the Government of the United States the intentions of his Majesty's Government with regard to some points arising out of the commission under the convention of St. Petersburg of the 12th July, 1822.
I have to express the sincere regret of his Majesty's Government at finding themselves under the absolute impossibility of accepting the terms of compromise offered by the envoy from the United States in London in satisfaction of all claims arising under the abovementioned convention. The terms of that compromise are considered as wholly inadmissible; and for the grounds of that opinion I have only to refer you to the correspondence which has taken place between his Majesty's Government and Mr. King.
I am directed to declare to the Government of the United States that his Majesty's Government cannot consent to allow that the question of interest upon arrears of moneys which may be awarded to claimants should be referred to the arbitration of the commission, and also that the demand of interest itself is resisted, as it is not contained in the convention, and declared to be unfounded by the law officers of the Crown.
It is the earnest desire of his Majesty's Government that the labors of the commission should terminate speedily and amicably, convinced that, by adhering strictly to the convention, full and impartial justice will be administered to every claimant upon the British Government.
I have the honor to request that you will accept the assurances of my highest consideration.
CHAS. E. VAUGHAN.
Hon. Henry Clay, &c., &c., &c.
Mr. Clay to Mr. Vaughan.
Department of State, Washington, April 15, 1826.
I have to acknowledge the receipt of the letter, under date the 12th instant, which you did the honor to address to me; and having submitted it to the President of the United States, I have his directions for the answer which I am now to communicate.
The proposal of a compromise, made by Mr. King, proceeded from a belief that the interests of both Great Britain and the United States would be promoted by fixing upon a gross sum, to be paid in lieu of the amount of the awards of a commission, whose progress had been attended with much difficulty, and whose duration was altogether uncertain. It was also believed that a compromise was conformable to the wishes of Great Britain. If the commission would proceed to execute, according to its true intent and meaning, the convention of St. Petersburg, the Government of the United States would prefer the aggregate amount of their adjudications to any sum on which the two Governments might have agreed by way of compromise, because that amount would express exactly the measure of indemnification which is due to the citizens of the United States under the decision of his Imperial Majesty, whilst a substituted sum could only be an estimate of it somewhat uncertain. In declining the proposal of Mr. King it would have corresponded with the friendly spirit in which it was conceived and brought forward if the British Government had stated what were its views of admissible terms of compromise. From the nature of the subject, in considering the terms of any compromise, absolute precision as to the exact amount of indemnity due is unattainable. The opinion of each party necessarily depends upon the view
which he happens to take of the facts and principles involved, and may he also effected, without his consciousness, by the bias of his own wishes and interests. It therefore often, if not always, happens that no compromise, in any case, can be effected until the parties have exchanged proposals, and thus attempted to reconcile conflicting interests. In contenting itself, as the British Government has done, with a simple negative of the offer of Mr. King, after having invited him to make it, without putting forward any other proposal, the Government of the United States has been disappointed in the fulfilment of a just expectation.
The declaration which you have been directed to make, that his Britannic Majesty's Government cannot consent to allow that the question of interest should be referred to the arbitration of the commission, has been received with surprise. By the fifth article of the convention it is provided that, "in the event of the two Commissioners not agreeing in any particular case under examination, or of their disagreement upon any question which may result from the stipulations of this convention, then and in that case they shall draw by lot the name of one of the two arbitrators, who, after having given due consideration to the matter contested, shall consult with the Commissioners, and a final decision shall be given conformably to the opinion of the majority of the two Commissioners, and of the arbitrator so drawn by lot. And the arbitrator, when so acting with the two Commissioners, shall be bound in all respects by the rules of proceeding enjoined by the fourth article of this convention upon the Commissioners, and shall be vested with the same powers, and be deemed, for that case, a Commissioner."
The Commissioners have disagreed in several cases, in which the American Commissioner has offered to designate an arbitrator in the mode provided by that article, and the British Commissioner has refused his concurrence. One of those cases is the question of interest to which you refer; but it is not the only case. The scheme of the commission is, that, in all decisions whatever arising under the convention, there shall be at least two voices, that is to say, those of the two Commissioners themselves if they can agree, and, if they cannot, those of one of the Commissioners and one of the arbitrators. The convention nowhere gives any countenance to the idea that the decision of one Commissioner in any case under examination is to be absolute and definitive. But if the refusal of the British Commissioner to give effect to the fifth article by casting lots for the arbitrator is upheld and justified, the decision of that Commissioner is, in effect, final and conclusive, and the commission is no longer mixed, (American and British,) but becomes simply and purely a British commission. If, as you are instructed to declare, interest is not contained in the convention, it needed no declaration of the law officers of the Crown that it was unfounded. Whether it be comprehended in the convention or not, as a part of the indemnity for which it stipulates, properly belongs to the Commissioners to determine. They are divided on that question—one entertaining the opinion that it is, and the other that it is not, a part of the indemnity. Here is the precise contingency for which the office of arbitrator is created in the convention. We are prepared to show, if it were proper now to enter on the discussion, that interest is a fair and just component part of the indemnification which the convention stipulated, and that, without interest, it would fall far short of the intention of his Imperial Majesty's decision. If the refusal of the British Commissioner to co-operate in the designation of an arbitrator is to be sanctioned in this instance, his refusal in every other case of disagreement between him and the American Commissioner may be equally supported, which would be equivalent to the dismission altogether of the American Commissioner, and an exclusive transfer of the whole business of the commission to the sole determination of the British Commissioner. It is therefore necessary to inquire whether the British Government means to assume, as a general principle, that the British Commissioner has a right, in all cases of disagreement between him and his associate, to refuse his concurrence to the appointment of an arbitrator; and if not, what is the principle for which they do contend, with its limitations; and, also, whether they mean to justify his refusal in cases of disagreement which have actually occurred other than that on the point of interest.
Concurring entirely in the sentiment expressed by you, that the labors of the commission should be speedily brought to an amicable conclusion, the American Government has seen, with approbation, the readiness which their Commissioner has displayed, in every instance in which he has unfortunately disagreed with his associate, to proceed to the appointment of an arbitrator. Should other disagreements arise between them in the future progress of the commission, he will, no doubt, continue to manifest the same disposition. And the hope is confidently indulged that, upon reconsideration, the good faith which ought ever to characterize the execution of national engagements will induce the British Government to cause the fulfilment of the fifth article according to the plain import of both its spirit and the terms in which it is expressed.
I pray you to accept assurances of my high consideration.
Right Hon. Charles R. Vaughan,
Envoy Extraordinary and Minister Plenipotentiary from Great Britain.
Mr. Vaughan to Mr. Clay.
Washington, April 17, 1826.
I had the honor on the 12th instant to acquaint you with the decision of his Majesty's Government upon certain points arising out of the convention of St. Petersburg. I should have confined myself to that communication, which I made in compliance with instructions from his Majesty's Government, but I cannot refrain from taking notice of some observations contained in your note of the 15th instant.
I cannot acquiesce in the latitude which you are disposed to give to the powers of the Commissioners under the convention of St. Petersburg, and I do not think that the refusal of the British Commissioner to have recourse to an arbitrator has been exercised in a manner to justify the apprehension which you express of the course of investigation likely in future to be followed by the commission. Upon inquiry I find that the British Commissioner has, in three instances only, refused to have recourse to drawing lots for an arbitrator. In the one instance, the commission was required to admit a claim after the definitive list was closed; in another, he refused to submit to arbitration the claim for slaves carried from Dauphin island; and on the third occasion he would not consent to allow the claim for interest to be decided by arbitration in the commission, in which he has been justified by the decision of his Majesty's Government.
I am led to believe, from your note of the 15th instant, that you are under an impression that the offer of compromise lately made by Mr. King, in satisfaction of all claims arising under the convention of St Petersburg, had been invited by his Majesty's Government. On a reference to the correspondence with Mr. King on that occasion you will not find any manifestation of a wish on the part of his Majesty's Government that such an offer should be made, which, as it appears to me, originated in a conviction, very justly entertained by Mr. King, that it would be equally agreeable to both Governments.
I request that you will do me the honor to accept the assurances of my highest consideration.
CHAS. E. VAUGHAN.
Hon. Henry Clay, &c., &c., &c.
Mr. Clay to Mr. Vaughan.
Department of State, Washington, April 19, 1826.
Sir: Although there is not much utility in prolonging the correspondence recently commenced between us, if, as I have understood you, the instructions which you have received from your Government are restricted to the single object which you communicated in your former note, to prevent any misinterpretation of my silence the note which you did the honor to address to me on the 17th instant demands some remarks.
Par from being disposed to expand the powers of the Commissioners under the convention of St. Petersburg, the Government of the United States only desires a strict and faithful execution of its positive stipulations. It cannot consent that one party, in a tribunal so constituted as that the voices of both ought to be equally heard, should assume the sole power of deciding any particular case under its examination. Such an assumption would have been inadmissible if the convention had not foreseen the possibility of a disagreement between the two members of that tribunal; but, anticipating the contingency, it has, with a wise forecast, made ample provision for it. That provision is a reference to the arbitration of the convention of their disagreement upon any question resulting from its stipulations. In the refusal, therefore, to refer the question of interest, and the other questions on which the Commissioners have divided, to arbitration, the Government of the United States has seen, with regret, an attempt to contract the stipulations of the convention within limits inconsistent with its plain and manifest import. The convention, expounded according to its true intention, carries within itself the means of its certain and unobstructed execution. When the Commissioners happen, unfortunately, to disagree in any case under their consideration, the remedy is specified. But if the Government of the United States could acquiesce in the course which has been pursued, the effect would be to remit the parties back to the state in which they stood when the appeal was made to the umpirage of the Emperor of Russia, and to revive discussions which, having then led to no reconcilement of their views, were supposed to be terminated by the imperial decision, and the convention made to give it complete operation. If, as you suppose, the number of instances is not great in which the British Commissioner has refused to consent to the reference to the arbitration of the convention, one of them, nevertheless, comprehends every claim to indemnity which can arise under the convention, and another includes all the slaves belonging to citizens of Louisiana, to which the highest average price has been affixed. What may be the future course of the British Commissioner can only be anticipated from the past; and the American Government is not prepared to express its willingness that the execution of the convention should proceed upon the unequal condition of allowing that the British Commissioner may, at any moment, arrest its progress by interposing his refusal to give effect to the fifth article. But it is prepared to say, and I am directed by the President to repeat to you, that the American Commissioner is ready diligently to proceed with the labors of the commission, and, in the event, which has happened, and which, unfortunately, may again happen, of the two Commissioners not agreeing in any particular case under examination, or of their disagreement upon any question which may result from the stipulations of the convention, to cast lots for an arbitrator in the mode for which it expressly provides. And the hope is yet indulged that the British Government, faithful to its solemn engagements, and respectful to the memory of the august and lamented personage out of whose decision they sprung, will concur with that of the United States in communicating to the Commissioners the wish that they would refer all cases of disagreements. But if his Britannic Majesty's Government should adhere to the declaration which you have announced, I must then repeat the inquiry contained in my last note, whether the British Government means to assert, as a general principle, that the British Commissioner has a right, in all cases of disagreement between him and his associate, to refuse his concurrence to the appointment of an arbitrator; and if not, what is the principle for which they do contend, with its limitations? And also whether they mean to justify his so refusing in cases of disagreement which have actually occurred other than that on the point of interest?
My former note was not intended to convey the idea that a compromise was invited, in the first instance, by the British Government; but it was intended to say, and the correspondence between Mr. Canning and Mr. King fully bears out, that the British Government did expressly invite the American Minister to specify a sum which would be satisfactory to the United States by way of compromise. He promptly, and without condition, suggested a sum. And I must continue to think that a spirit of frank and friendly negotiation required that, in rejecting as inadmissible the sum so specified, the British Government ought to have stated a sum which would correspond with its own views.
I have the honor to renew assurances of my distinguished consideration.
Eight Hon. Charles E. Vaughan,
Envoy Extraordinary and Minister Plenipotentiary from Great Britain.
Mr. Vaughan to Mr. Clay.
Washington, September 20, 1826.
The correspondence which took place between us in the month of April last, relative to the refusal of the British Government to admit the claim of interest upon the sums which may be awarded by
the Commissioners under the convention of St. Petersburg, having been submitted by me to the consideration of his Majesty's Government, I have been lately put in possession of the view which has been taken of some of the leading points contained in that correspondence, which I think that it is my duty to communicate to you.
In the first place, his Majesty's Government has observed that in the notes which I have had the honor to receive from you, dated the 15th and the 19th of April last, an erroneous construction has been put upon the conduct of the British Commissioner at Washington, and upon the motives of the Government for approving that conduct.
His Majesty's Government do not think it necessary to reply to the alleged assumption by the British Commissioner of the sole right of deciding in certain cases proposed for arbitration within the commission by his American colleague, as no such right is assumed by the British Commissioner.
I have to assure you that his Majesty's Government are prepared to execute, in all their extent, the stipulations of the convention of 1822, and to admit the reference to arbitration by the commission of all points which fall within the provisions of that instrument. It is because the points proposed by the American Commissioner do not fall within the provisions of the convention that the British Government decline to acquiesce in the proposed reference of those points to arbitration.
The words of the convention are, (article 5,) "In the event of the disagreement of the two Commissioners upon any question which may result from the stipulations of this convention," &c.
Now, the question of interest on moneys awarded as indemnity under the convention cannot be said to fall within this description, which evidently applies only to such questions as are either specified in the convention, or are essentially part of its stipulations.
The question of interest certainly is not specified in the convention; as little can it be affirmed to be of the essence of the convention, to which, in fact, it is totally extraneous.
The commission under the convention of St. Petersburg was established for one specific purpose, namely, the adjudication of certain prescribed objects, and within certain prescribed limits. Neither the one party nor the other can be permitted to exceed those limits by assuming to himself the power of introducing into such instrument an arbitrary extension of its objects, nor can the British Government admit, as if it were a mere construction of doubtful terms, the interpolation of a claim totally new, and notoriously never in the contemplation of the framers of that instrument.
The mode of reasoning adopted in your correspondence would go to bring within the jurisdiction of the commission, and to subject to reference to decision by a commission of arbitration, any the most unforeseen and extravagant demand that could be set up by one party against the other.
It seems quite clear to the British Government that the Commissioners are competent to act only under the instrument by virtue of which they are appointed, and that nothing can be subject of reference to arbitration under the commission which is not of the jurisdiction of the commission.
Each Commissioner must undoubtedly judge for himself what subjects are, and what are not, of the competence of the commission. It is a power which both Commissioners have exercised; for, if in the instance now in question, the British Commissioner has objected to a reference to arbitration proposed by his colleague, the American Commissioner has done the like with respect to the proposal of the British Commissioner to refer to arbitration the question of the propriety of submitting, or not submitting, to the inspection of the public the list of deported slaves furnished by the British Admiralty.
It is thought to be a sufficient reply to the interrogations contained in your notes that each party has equally claimed and acted upon what you term the "assumption by the British Commissioner of the sole right of deciding on certain points."
With regard to the demand of the Government of the United States respecting slaves taken away from Dauphin island, reference need only be made to the terms of the convention of July 12, 1822, and to those of the treaty of Ghent, to show that demand to be totally unfounded.
The award of the Emperor of Russia, prefixed to the convention, runs thus: "The United States are entitled to claim from Great Britain a just indemnification for all the slaves that the British forces may have carried away from the places and territories of which the treaty of Ghent stipulates the restitution."
Now, that treaty provides that "all territories, places, and possessions whatsoever, taken by either party from the other during the war, shall be restored without delay, and without carrying away any slaves or other private property."
The places herein alluded to can, of course, be such possessions only as essentially belonging to, not merely occupied by, one party were captured by the other; no other construction is to be sustained.
To maintain, therefore, this claim, it must be shown that Dauphin island was an American possession at the moment of its capture by the British forces. But it is notorious that it was not so, and that it did not become so until the year 1819, when it was formally ceded to the United States by Spain.
To show that Dauphin island was, in 1814, considered by us as Spanish, it is only necessary to advert to the instructions issued in July of that year to the British officers engaged in hostilities against the United States, especially enjoining them not to infringe the neutrality of that territory so long as the Spanish Government should remain at peace with the United States.
The British forces did, in fact, take possession of the island, not as belonging to the United States, but merely as a position occupied at the time by the American forces.
To show that that territory was equally considered Spanish by the Americans themselves, it is only necessary to refer to the papers of some of the claimants presented to the Board of Commissioners, in which they actually urge as an aggravation of their grievances "that in going to Pensacola (in West Florida) to demand restoration of their slaves from the British commander they considered themselves in a neutral territory, and subject to the protection of the Spanish Government."
No subsequent transfer of the spot so occupied by Spain, its lawful owner, to the United States, can affect retrospectively the undoubted title of Spain at a period previous to such transfer.
The convention provides compensation for matters taken from places which were American property at the time of such taking, not from any places which may subsequently have become so.
I have thought it my duty to announce to you the opinions entertained by his Majesty's Government upon certain points treated of in the correspondence which I had the honor to hold with you in the month of April last upon the subject of the convention of St. Petersburg. I am particularly instructed, when doing so, to assure you that his Majesty's Government entertain an unabated, and anxious desire to bring to as speedy a termination as possible the commission under that convention, and a confident hope is entertained that, in furtherance of this object, any differences of opinion which may arise between the respective parties, as to references to arbitration, may be set aside for consideration hereafter, and may
not be suffered to obstruct the course of the investigation, or to preclude the settlement of the claims successively presented to the board.
I have the honor to request that you will accept the assurances of my highest consideration.
CHAS. R. VAUGHAN.
Hon. Henry Clay, &c., &c., &c.
Mr. Clay to Mr. Vaughan.
Department of State, Washington, October 12, 1826.
I have the honor to acknowledge the receipt of your note, under date the 20th ultimo, communicating the view which has been taken by the British Government of some of the leading points of the correspondence between us, in the month of April last, relating to the execution of the convention at St. Petersburg, in 1822, for carrying into effect the decisions of his Imperial Majesty the late Emperor of Russia.
The President learns, with extreme regret, that the British Government perseveres in its approbation of the refusal of the British Commissioner to refer the controverted question of interest to the arbitration for which the convention provides, as proposed by the American Commissioner; and that it, moreover, not only approves of his rejection of the claim to indemnity for the slaves taken away from Dauphin island, but sanctions his refusal also to refer to the same arbitration the decision of that claim as was likewise proposed by the American Commissioner. And the President finds himself altogether unable, from the observations contained in your note, to reach the conclusions to which the British Government has brought itself. If, as stated, any erroneous construction had been put by him upon the conduct of the British Commissioner, and upon the motives of his Britannic Majesty's Government in approving it, the President would have been happy to have been made sensible of it, and he would instantly have corrected it. It never was contended on our part, in the correspondence referred to, that the British Commissioner assumed, in terms, the sole power of deciding cases brought before the commission, but that such was the effect of his refusal to submit them to arbitration upon the allegation of their not being comprehended within the convention. And if, as has happened, he has refused to refer every case on which he and his colleague have differed to arbitration, and his Government sanctions this non-execution of the convention, the result is not that his sole voice decides all such cases, provided there is acquiescence on our side, it is difficult to understand what is the result.
The British Government now professes to be willing to admit the reference to arbitration of all points which fall within the provision of the convention, and alleges that the reference is refused of those proposed to be referred by the American Commissioner because they do not fall within that instrument. And it seeks to justify, in respect to the particular question of interest, the refusal to arbitrate it because it is alleged that interest on moneys awarded as indemnity under the convention cannot be said to fall within the description which evidently applies only to such questions as are either specified in the convention or are essentially part of its stipulations. And it asserts that the question of interest is not specified in the convention, nor is it of the essence of the convention, to which, in fact, it is extraneous.
The American Government, no more than that of his Britannic Majesty, desires the reference of any question arising on any point that does not come within the convention; and it is upon the full conviction that interest is so included that it cannot admit the propriety of the refusal to arbitrate it. It is certain that the subject of interest, eo nomine, is not specified in the convention, but neither is principal. The convention was framed to secure the just indemnity awarded by the imperial decision, but neither that instrument nor the imperial decision proceeds to what, perhaps, was considered unnecessary to enumerate the items which should compose that just indemnity. His Imperial Majesty confided, and, no doubt, thought he had safely confided, to the justice and intelligence of the representatives of two highly commercial nations the ascertainment of the component parts of a just indemnity for long-standing injuries. If a justification for the rejection of one of those component parts is to be found in the omission of the convention expressly to specify it, the same justification exists for the rejection of every other component part.
It is true that the commission, under the convention of St. Petersburg, was constituted for a specified purpose, which was to give effect to the imperial decision in favor of the claim of the United States to "a just indemnification for all private property which the British forces may have carried away; and, as the question relates to slaves more especially, for all the slaves that the British forces may have carried away from places and territories of which the treaty stipulates the restitution in quitting these same places and territories." In ascertaining the rights of the United States and the duties of the commission we must, therefore, look both to the imperial decision and the convention of St. Petersburg. The decision is the substratum; the convention is the instrument or means only of effectuating it. And if, as is readily admitted, neither party is entitled to exceed the limits which the decision and the convention, its offspring, prescribe, so is neither party authorized to curtail or circumscribe those limits. In determining whether the imputation to the United States of a wish to interpolate a claim totally new be just or not, there must be a solution of the question, of what is a just indemnification, according to the true intent of the imperial decision? And before the British Government could be justified in making such an imputation, it ought to have been prepared to show that the sufferers in the loss of productive property transported now nearly twelve years ago in contravention to the provisions of the treaty of Ghent, will have received a just indemnification for their losses by now obtaining the value of their property, at the moment of its illegal transportation, without interest or any compensation in the nature of damages. This has been neither shown nor can be proved. In lieu of proofs, the British Government contents itself with asserting that the claim of interest was notoriously never in the contemplation of the framers of the convention. This assertion, whether founded upon their intention as deducible from the instrument, or extraneous to it, cannot be admitted.
Tour note proceeds to allege that the mode of reasoning adopted in those which I had the honor to address to you in April last, would go to bring within the jurisdiction of the commission, and to subject to reference to decision by a commission of arbitration, any the most unforeseen and extravagant demand that could be set up by one party against the other. What part of the reasoning of those notes deserves to be
thus characterized it is not easy to understand. They claimed only the fair execution of the convention. It was stated in them, and the offer was made to prove, whenever the British Government should be willing to enter on the discussion, that interest was fairly demandable. And any wish on the part of the Government of the United States was disclaimed to extend the provisions of the convention beyond its fair import. If, indeed, any unfounded claim should be preferred under the convention by a citizen of the United States, the British Government has adequate security for its rejection in the integrity and intelligence of the tribunal which is to pronounce upon it. The probability is much greater of the loss of just demands, by the defect of proof from the lapse of time and the difficulty in substantiating them, than that the British Government should be subjected to the payment of any that are unjust.
The doctrines contained in your note would lead to withdraw from the jurisdiction of the commission every claim, however just, and however manifestly it might fall within the meaning of the convention. According to these doctrines, whenever the British Commissioner rejects a claim, if he also refuse to refer it to arbitration, there is an end of it. The ready suggestion is always at hand, that it does not fall within the terms of the convention. If, as may be asserted, the United States have a security against injustice in the intelligence and uprightness of the British Commissioner, the answer is, that whatever may be the degree of the confidence of their Government in his profession of those qualities, that was not the only security which had been stipulated. It was a security resulting from a tribunal of two or three, according to contingencies, and not one for which the convention provides.
The Government of the United States has never objected to the right of each Commissioner judging for himself what subjects are, and what are not, within the competence of the commission. It has objected only to the assumption of a right, on the part of the British Commissioner, to judge both for himself and for his American colleague, and to his making his sole decision final and conclusive without resorting to the arbitrator who was to be called upon "in the event of the two Commissioners not agreeing in any particular case under examination, or of their disagreement upon any question which may result from the stipulations of the convention." With respect to the instance adduced to prove that each Commissioner has exercised the right to refuse a reference to arbitration, it is to be observed that the proposal of the British Commissioner to refer the question of the propriety of submitting, or not submitting, to the inspection of the public, the list of deported slaves, was an abstract proposal, there being then no case under examination to which it attached itself. At a subsequent period of the proceedings of the board, the American Commissioner offered to refer that, and every other question on which he and his colleague might disagree, to the arbitration of the convention. So that it is perfectly true that the British Commissioner has, in every case in which his colleague has proposed a reference, refused it; whilst that colleague has been ready to co-operate in referring every question of disagreement that has arisen or may arise between them.
In respect to the question of the slaves taken away from Dauphin island, it is with unaffected surprise that the President perceives that the British Government has extended its approbation of the conduct of the British Commissioner to his refusal to refer the disagreement between him and his associate in respect to those slaves. Had the American Commissioner refused, upon the offer of his colleague, to refer the question whether that island was or was not an American possession, or a part of the territory of the United States, he would have been as much justified as in refusing to refer a question raised about our title or possession of Tangier island, in the Chesapeake bay, or any other portion of the acknowledged territory of the United States. The provision of the treaty of Ghent to which the imperial decision refers is correctly quoted by you. That provision gives to one party the right to demand, and makes it the duty of the other to surrender, all territories, places, and possessions whatsoever, taken during the war. There is no qualification or limitation in respect to title upon which the surrender was to depend. The concurrence of two facts was all that was necessary: first, that it was a territory, place, or possession; and secondly, that it was taken by one party from the other during the war. The usual language employed in stipulations in treaties of peace, founded on the status quo ante bellum, is, that the surrender of territory for which they provide shall be of those places belonging to one parly which have been captured by the other during the war. That language is liable to the objection that, in executing the stipulation, it leaves open to controversy the question whether a particular place, taken during the war, does or does not belong to the party from whom it was taken and who demands the surrender. It is perfectly well known to the American negotiators of the treaty of Ghent that the phraseology of the first article of the treaty of Ghent was carefully and expressly arranged to cut off all subsequent controversies about the right of the United States to the territories, places, and possessions of which it stipulates the surrender; and if it be not competent to effect that purpose, the English language does not supply words which could accomplish it. It is, therefore, not conceded that the places alluded to can be, of course, such possessions only as essentially belonging to, not merely occupied by, one party were captured by the other. If the possessions mentioned in the treaty are to be expounded as meaning those only to which the party claiming their restoration had a right, how can Great Britain, after having restored, in virtue of that stipulation, the establishment at the mouth of the Columbia river, on the Pacific Ocean, now set up any title to it?
It is sufficient, therefore, in vindication of the claim to indemnity for the slaves taken away from Dauphin island, to show, without any regard whatever to the title to that island, that it was in the possession of the United States and taken from them during the war; and this is expressly admitted by your note.
In respect to our title, the British Government appears to entertain some misconceptions about its source, the correction of which, it is hoped, will lead to the immediate acknowledgment of the validity of the demand to indemnity, which they now contest. Our title, then, is not derived, as appears to be supposed, from the treaty of Washington, concluded with Spain in 1819, but from the treaty with France of the 30th April, 1803, by which Louisiana was ceded to the United States. The limits of Louisiana extended east as far as the river Perdido, between the bay of Mobile and the bay of Pensacola, comprehending, of course, the bay of Mobile with all its waters, islands, and dependencies. Dauphin island is situated at the mouth of the bay of Mobile. As far back as in February of the year 1804 the Congress of the United States legislated on the subject, and authorized the President of the United States to erect the shores, waters, and inlets of the bay and river Mobile, and of the other rivers, creeks, inlets, and bays, emptying into the Gulf of Mexico, east of the river Mobile, and west thereof to the Pascagoula, inclusive, into a separate district for the enforcement of the revenue laws of the United States.
Under this act possession of the bay of Mobile was taken by the President of the United States, Fort Boyer was erected at the mouth of the river Mobile, and Dauphin island was also occupied by the forces
of the United States. That fort was reduced, and the island taken possession of, by the British arms during the late war; and both were surrendered to the United States in virtue of the first article of the treaty of Ghent.
This explanation, which it is hoped cannot fail to prove entirely satisfactory to the British Government, accounts for the expressions referred to by your note, in the papers of some of the claimants presented to the Board of Commissioners, in which they state that, in going to Pensacola, they considered themselves in a neutral territory and entitled to the protection of the Spanish Government. Pensacola, being situated east of the river Perdido, was no part of Louisiana, but belonged to Spain as a part of Florida, until the cession of it to the United States by the treaty before mentioned of 1819. To the reasoning of your note, which is founded on the error of which the correction is now made, it is not necessary to reply.
In conclusion, you will perceive from these views, entertained on the two points of which your note treats, that the Government of the United States believes—
1st. That the interest, which is claimed as a part of the indemnity, to which the imperial decision extends, is not extraneous to the convention of 1822, but is essentially comprehended within it; and,
2d. That both the possession and the right to Dauphin island were with the United States; that the possession was taken from them by the British forces during the war, and was restored on the return of peace; and, consequently that there is no pretext for withholding compensation for those slaves which were carried away from it in violation of the treaty of Ghent.
The President indulges, therefore, the hope that the good faith which should ever characterize the fulfilment of all national engagements will induce the British Government to remove the impediments which have hitherto obstructed the execution of the convention of St. Petersburg, by directing a reference to the arbitration for which it provides of all questions on which the two Commissioners have already disagreed or may hereafter disagree.
I avail myself of this occasion to tender you the homage of my high consideration.
Rt. Hon. C. K. Vaughan, Envoy Extraordinary and Minister Plenipotentiary from Great Britain.
Mr. Vaughan to Mr. Clay.
Washington, October 13, 1826.
Sir: I have the honor to acknowledge the receipt of your note in answer to the statement which I made to you of the opinions entertained by his Majesty's Government upon some points of the correspondence which took place between us, in the month of April last, respecting the commission under the convention of St. Petersburg.
I have nothing to add to the opinions which I have already laid before you, as those which are entertained by his Majesty's Government with regard to the claim for interest, nor do I feel myself competent to decide upon the validity of the claim to indemnification for slaves taken from Dauphin island, which you state to have been taken possession of, together with a certain portion of the province of West Florida, by the United States in 1804. You seem to be of opinion that it is sufficient, in vindication of that claim, to show that the island was in possession of* the United States, and taken from them during the war without any reference to the validity of the title to that territory, in the possession of which, by the United States, it is generally understood, that Spain did not acquiesce; and that it did not pass into the dominion of this country until the cession of the Floridas in 1819.
I cannot acquiesce in your declaration that the doctrines contained in my note tend to withdraw from the jurisdiction of the commission any claim, however just, because the British Commissioner may refuse to submit it to arbitration, "the ready suggestion" being always at hand, that it does not fall within the terms of the convention.
I must remind you that both Commissioners have exercised their discretion in refusing to refer disputed points to arbitration. In the two instances in which the British Commissioner refused, he did so because he was convinced that the terms of the convention did not authorize the commission to decide either upon the claim of interest or upon the indemnification for slaves taken from Dauphin island; and the British Government coincided in the view which he had taken of the powers with which the commission was invested by the convention.
In the instance which has been given of refusal on the part of the American Commissioner to refer to arbitration the propriety of submitting to the inspection of the public the list of deported slaves furnished by the British Admiralty, you are pleased to consider the proposal as an abstract one, no case being then under examination. That question, however, was agitated in the commission at the moment when the claimants were arranging the evidence in support of their demands. The instances are three in number in which the Commissioners have refused arbitration, and I cannot assent to the blame which, it seems to me, is implied by your observation that the British Commissioner has in every case refused to arbitrate, while the American Commissioner has been ready to refer every question of disagreement to arbitration that has arisen or may arise between them.
I regret that there should be any difference of opinion upon the manner in which our respective Governments are inclined to understand the convention of St. Petersburg.
It appears to the British Government that it was not in the contemplation of the framers of the convention to grant interest upon the sum which might be awarded as compensation, nor do I think that any usages of commerce are to be made applicable by inference to political engagements. I am sure that you will agree with me in acknowledging that no allusion is made to the granting of interest in any part of the convention. I was justified, therefore, in observing that the. admission of that question to decision by the commission would subject equally to their decision any other unforeseen and extravagant demand. I agree with you that neither party is at liberty to extend or circumscribe the limits of the convention. In ascertaining those limits strict adherence must be observed to the words of the convention; nor can I admit any latitude in construing the powers of the commission by a reference to what may be supposed to be the meaning of the decision of the Emperor of Russia.
I have ventured to offer these observations upon the remarks which you have made upon my last
note; and I request that you will do me the honor to accept the renewed assurances of my highest consideration.
CHAS. R. VAUGHAN.
Hon. Henry Clay, &c., &c., &c.
Extract of a despatch from Mr. Clay, Secretary of State, (No. 9) to Mr. Gallatin, Envoy Extraordinary and Minister Plenipotentiary to Great Britain, dated October 12, 1826.
(For this extract see page 345 of this volume.)
Letter from Mr. Gallatin to Mr. Clay, dated London, November 13, 1826.
(For this letter see page 353 of this volume.)
(For the convention transmitted with said letter see page 355.)