to the place where private property was originally captured, nor as to the place from whence it was not to be carried away, and that all merchant vessels captured on the high seas, and their effects, must be restored, even if they were not within the limits of the United States at the time of the exchange of the ratifications of the treaty, and that all carrying away of private property, even from the commencement of the war, would be rendered unlawful. It was indeed true, said the British Government, that, according to the American construction, the private property in contemplation was limited to such as had been originally captured within the territories of the United States, and to such as remained there, whether on land, or in British ships of war, or in British vessels. But if the treaty were examined it would be found to be impossible, without such omissions and interpolations as could never have been intended, to extract from it these limitations without ascribing to the same stipulation the effect of placing private and public property at once under the same and dissimilar conditions. As to private property on shipboard, neither the first article itself, nor any discussions concerning it, referred to the restitution of such property; and the United States could have no claim to property which had, previously to the exchange of ratifications, been removed on shipboard, or which could not be proved to have been at that time in places directed to be restored. As to the negotiations at Ghent, the British Government contended that the transposition of the words "originally captured in the said forts or places, which shall remain therein, upon the exchange of the ratifications of this treaty," so as to make them follow immediately after the words "public property," was a mere verbal alteration not at all affecting the sense of the article; and that if the American plenipotentiaries entertained a different intention they did not disclose it. Indeed, the British chargé at Washington declared that he had no hesitation in stating his "belief founded on the best means of information, that at the time the article was framed, it was meant that the prohibition against carrying away slaves and private property should be taken in connection with the restoration of territory, places, and possessions; and that had it been supposed by his Majesty's plenipotentiaries, at Ghent, that the words were susceptible of the construction now given to them, and that a claim would be founded upon them for the delivering up of persons who had sought refuge during the war on board of British ships, their insertion would have been decidedly objected to, and others proposed."1 Reply of United To the argument that as the words "carryStates. ing away" applied to both members of the sentence and both descriptions of property, public and private, it was therefore arbitrary to say that the intervening words applied to one but not to the other, the United States replied that the fallacy of the argument consisted in the inference that, because the verb was common to both descriptions of property, the incidents exclusively applicable to one species must also be made common to the other. Reduced to a rule of grammar, this rule meant that whenever one verb governed two substantives in the same sentence every epithet applied to either must be understood as also applying to the other. To the argument that unless the limitations as to time and place applicable to public property were also applied to pri.vate property, merchant vessels captured on the high seas and their effects must be restored even if they were not within the limits of the United States at the exchange of ratifications, and that the obligation to restore might be carried back even to the commencement of the war, the United States answered that "there is a limitation of universal application to the meaning of words, that they shall be understood with reference to their subject matter. A stipulation to evacuate places without carrying away private property, could certainly need no qualifying limitation of time or place, to exclude the construction that those who evacuated should not carry away their own property; or property which was not in the place to carry away. The words, without any expressed limitation, must in common sense be applied to property in the place and not their As to the merchant vessels and their effects captured on the high seas, as they are by the general Laws of Nations prize of war, they are from the time of capture considered, and by the second article of the treaty are recognized, as the property of the captors and as such could not be included in the stipulation not to carry away private property, even though they might have been, at the time of the ratification of the treaty, in places to be evacuated." own. As to the transposition of the words of the article by the 1 Am. State Papers, For. Rel. IV. 120, 125; Précis, etc. 15. plenipotentiaries at Ghent, the United States maintained that it was impossible for the British plenipotentiaries to have read the article as drawn before and after the transposition without perceiving that the effect was to mark a clear and unequivocal distinction between public and private property, and that if they had asked why the words should be transposed, and why the restoration of public, but not of private, property should be limited to such as was originally captured in the place and remained there at the place, the reply would have been: "Because public property was of course necessarily taken with the place and might be disposed of at the pleasure of the captor. But private property was not and could not be lawfully taken with the place. With the exception of maritime captures, private property in captured places is by the usages of civilized nations respected. None could lawfully be taken; and the stipulation was that none should be carried away. The very specification of slaves was such a disclosure of the intention of the American plenipotentiaries in this provision as took away from the British all reasonable claim to the right of alleging that they considered the variation in the wording of the article as merely verbal." Great Britain's Modified Position. The British Government in the end modified the position assumed by Captain Lavelle, and sustained by Admiral Cockburn and Lord Bathurst, that the obligation to restore slaves was limited to such as were not only in the places directed to be restored at the date of the exchange of the ratifications, but were also originally captured there. In a note to Mr. Adams of April 10, 1816, Lord Castlereagh declared that His Majesty's government had never resisted "the claim of the United States · to indemnification for slaves or private property belonging to their citizens, which can be proved to have been in places directed to be restored by the treaty of Ghent, at the date of the exchange of the ratifications, and to have been afterwards removed." But he at the same time declared that he could not consider "any property which had been, previous to the ratification of the treaty, removed on shipboard," as properly forming a subject for a claim of restoration or indemnification. In this conflict of opinion the United States offered to refer the question at issue to the decision of some friendly power. The British Government was disposed to accept this proposition, with the Arbitration Discussed. 1Am. State Papers, For. Rel. IV. 126. 1 modification that the question should first be submitted to two commissioners, according to the method adopted in the various arbitral clauses in the Treaty of Ghent. For a time the subject remained in suspense. But in 1818, when Messrs. Gallatin and Rush undertook to adjust with Lord Castlereagh the several points of differences between the two countries, they included in their plan the controversy concerning the restoration of "slaves or other private property." In the course of the subsequent negotiations Messrs. Gallatin and Rush offered to submit the subject to commissioners. The British plenipotentiaries, Messrs. Robinson and Goulburn, proposed as a substitute an article to refer it to a friendly sovereign. As this was the mode originally suggested by the United States the American plenipotentiaries accepted it, and proposed that the Emperor of Russia be designated in the article as arbitrator. This proposal was rejected on the ground that if the Emperor should be designated and should refuse to act the agree ment would become null, and that it would be inexpedient to include in the treaty a provision for such a contingency. The selection of a sovereign was therefore left to be made by the two governments at a future day.3 Agreement of Arbitration. The article as finally agreed on forms Article V. of the convention concluded October 20, 1818. After reciting the provisions of the Treaty of Ghent, as to which the controversy had arisen, and the fact that the United States claimed for their citizens, "the restitution of, or full compensation for all slaves who at the date of the exchange of the ratifications of the said treaty were in any territory, places, or possessions whatsoever directed by the said treaty to be restored to the United States, but then still occupied by the British forces, whether such slaves were at the date aforesaid on shore or on board any British vessel lying in waters within the territory or jurisdiction of the United States," the article provided that the differences which had arisen as to whether the United States were, "by the true intent and meaning of the aforesaid article of the Treaty of Ghent, * * entitled to the restitution of, or full compensation for all or any slaves as above described," should 1 Am. State Papers, For. Rel. IV. 379. be referred "to some friendly sovereign or State to be named for that purpose," whose decision should be "final and conclusive on all the matters referred."1 Award. Under this provision the Emperor of Russia was selected as arbitrator. His consent to act in that capacity having been obtained, the subject was submitted to him and argued by means of memorials presented by Mr. Henry Middleton and Sir Charles Bagot, the American and British plenipotentiaries, respectively, at St. Petersburg, through Count Nesselrode, the imperial minister for foreign affairs. On the 22d of April 1822 the Emperor communicated to the plenipotentiaries, through Count Nesselrode, his award, which was in the following terms: 3 "Count Nesselrode to Mr. Middleton. "[Translation.] "The undersigned, Secretary of State, directing the Imperial Administration of Foreign Affairs, has the honor to communicate to Mr. Middleton, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, the opinion which the Emperor, his master, has thought it his duty to express upon the subject of the differences which have arisen between the United States and Great Britain, relative to the interpretation of the first article of the treaty of Ghent. "Mr. Middleton is requested to consider this opinion as the award required of the Emperor by the two Powers. "He will doubtless recollect that he, as well as the Plenipotentiary of His Britannic Majesty, in all his memorials, has principally insisted on the grammatical sense of the first article of the treaty of Ghent, and that, even in his note of the 4th (16th) November, 1821, he has formally declared that it was on the signification of the words in the text of the article as it now is that the decision of His Imperial Majesty should be founded. "The same declaration being made in the note of the British Plenipotentiary dated 8th (20th) October, 1821, the Emperor had only to conform to the wishes expressed by the two parties, by devoting all his attention to the examination of the grammatical question. "The above-mentioned opinion will show the manner in which His Imperial Majesty judges of this question; and in order that the Cabinet of Washington may also know the motives upon which the Emperor's judgment is founded, the undersigned has Am. State Papers, For. Rel. IV. 407. 2 Am. State Papers, For. Rel. IV. 645. 3 Am. State Papers, For. Rel. V. 220. |