Chapter VIII: General Observations (2)

During the negotiation with Grenville there took place many heated debates, in which each party accused the other of the first aggression. Meanwhile Jay ascertained, September 13, 1794, that Grenville supported the contention held by his predecessors, that the article of the treaty was intended to prevent depredations at the departure of the army; that no alteration in the actual state of property was intended by the Seventh Article; that every Negro who strayed or escaped from the American lines and came into the lines of the British Army became by the laws of war British property; and that to extend the Seventh Article of the treaty to include Negroes who came within the British lines under the proclamation of freedom was to give it a "wider latitude than the terms of it would warrant."[45] In short, Grenville contended that in regard to those within the British lines before the signing of the treaty they were "left entirely without restrictions."[46]

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 destitute 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 assert 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 accumulation 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 assured and the representatives of Great Britain and America assembled 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 Cumberland Island fortified by Admiral Cockburn.[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 circumstances."

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 entitled 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 entitled 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 Cockburn. 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 restitution 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 entitled 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 passed 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 principal amounts ascertained seventy-five per cent of the principal 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 petitions 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 passed 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 manuscript: _American State Papers, Foreign Relations_; _American State Papers, Confidential Documents_; _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 Association Reports_; Babcock, _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 Association_, Vol. I, p. 273. F. A. Ogg, _American State Papers_, Vol. IV, p. 304.

[4] Moore, _International Arbitrations_, p. 350.

[5] Van Tyne, _American Revolution_, p. 61; Force, _American Archives_, 4th Series, III, 1385.

[6] Proclamation--"Whereas the enemy have adopted a practice of enrolling Negroes among their troops, I do hereby give Notice that all Negroes taken in Arms or upon any military Duty shall be purchased for the public service at a stated price; the money to be paid to the captors. But I do most strictly forbid any Person to sell or claim right over any Negroes the property of a Rebel who may take refuge with any part of this Army. And I do promise to every Negro who shall desert the Rebel Standard full Security to follow within the Lines any occupation which he may think proper." Given under my Hand at Headquarters, Phillipsburg, the 30th day of June, 1799.

H. CLINTON.
By his Excellency's Commander
JOHN SMITH, Sec.

Journal of Continental Congress, II, 26; Van Tyne, _American Revolution_.

[7] Force, _American Archives_, I, 486, Fifth Series.

[8] _Journal of Continental Congress_, II, 26.

[9] Ramsay, _History of South Carolina_, Edition, 1809, I, 474.

[10] Moore's _Historical Notes_, 14; _Journal of Negro History_, Vol. I, p. 117.

[11] _Jefferson's Works_, Vol. II, p. 426.

[12] Sparks, _Washington's Works_, III, 218.

[13] Channing's _History of the United States_, Vol. III, pp. 348-369.

[14] _American Historical Association Report_, Vol. I, p. 273.

[15] Article 7, Treaty of Paris.--"There shall be a firm and perpetual peace between his Brittanic Majesty and the said States, and between the subjects of the one and the citizens of the other, wherefore all hostilities both by sea and land shall from henceforth cease: All prisoners on both sides shall be set at liberty, and his Brittanic Majesty shall with all convenient speed, and without causing any destruction or carrying away any Negroes or other property of the American inhabitants, withdraw all his armies, garrisons and fleets from the said United States, and from every port, place and harbour within the same; leaving in all fortifications the American artillery that may be therein; and shall also order and cause all archives, records, deeds and papers belonging to any of the said states or their citizens which in the course of the war may have fallen into the hands of his officers to be forthwith restored and delivered to the proper states and persons to whom they belong."

McDonald, _Documentary Source Book of American History_, p. 208.

[16] _American Historical Association Report, 1874_, p. 421. Waits, _American State Papers_, Vol. I, p. 279.

[17] _Journal of Negro History_, Vol. II, pp. 411-422.

[18] Sparks, _Washington_, Vol. VIII, Appendix, p. 544.

[19] Washington to Daniel Parker in Ford's _Washington's Writing_, X, 246-247.

[20] Ford's Edition of _Jefferson's Writings_, p. 127.

[21] _Journal of Negro History_, Vol. II, p. 417.

[22] Ford, _Washington's Writings_, X, 241-243.

[23] _Journal of Negro History_, II, 418.

[24] _Diplomatic Correspondence_, Vol. XI, p. 335.

[25] Ford, _Washington's Writings_, X, 241-243.

[26] _American State Papers--Foreign Relations_, I, p. 190.

[27] _Ibid._, I, p. 191.

[28] _Ibid._, I, pp. 188-192.

[29] _American State Papers, Foreign Relations_, Vol. I, pp. 188-192.

[30] _Blank certificate_--New York, April 23, 1783.

This is to certify to whomsoever it may concern that the bearer hereof ........... a Negro restored to the British Lines in consequence of the proclamation of Sir William Howe and Sir Henry Clinton, late Commanders-in-chief in America; and that the said Negro has hereby his excellency's Sir Guy Carleton's permission to go to Nova Scotia or wherever else .......... may think proper.

By order of
BRIGADIER GEN. BUCK.
E. WILLIAMS,
Major of Brigade.

[31] _American State Papers_, Vol. I, pp. 190-192.

[32] McDonald's _Source Book of American History_, p. 208.

[33] _American Historical Association Report_, Vol. I, p. 276.

[34] _Annals of Congress_, 4th Congress, p. 970.

[35] _Report of the American Historical Association_, pp. 413-444; _Diplomatic Correspondence 1783-1789_ (3 Vol. ed.), II, 340.

[36] Morse, _John Adams_, p. 235.

[37] _Adams' Works_, Vol. VIII, p. 303.

[38] _American Historical Association Report, 1894_, p. 422. McLaughlin. _American State Papers, Foreign Relations_, Vol. I, p. 122.

[39] _American Historical Association Report_, 1894, p. 422.

[40] _American State Papers, Confidential Documents_, Vol. X, p. 80.

[41] _American State Papers, Confidential Documents_, Vol. X, p. 85.

[42] McLaughlin, _Western Posts and British Debts_, p. 423 in _American Historical Association Report_, 1894.

[43] _American State Papers, Foreign Relations_, Vol. I, pp. 470-472.

[44] Jay to Randolph, _American State Papers_, Vol. I, p. 485.

[45] _American State Papers_, Vol. I, p. 485.

[46] _Ibid._, p. 486.

[47] _American Historical Association Report_, Vol. I, pp. 273-298.

[48] _American State Papers_, Vol. I, p. 501.

[49] _Ibid._, p. 509.

[50] _American Historical Association Report_, Vol. I, pp. 273-298.

[51] _Annals of Congress_--4th Session, 1795-96, p. 1006.

[52] Halleck, _Elements of Law_, p. 358.

[53] _Ibid._, p. 359.

[54] Wheaton's _Edition by Dana_, page 441.

[55] _American State Papers--Foreign Relations_, Vol. II, p. 46.

[56] _American State Papers--Foreign Relations_, Vol. II, p. 48.

[57] Moore, _Digest of International Law_, Vol. V, page 372.

[58] _Ibid._, page 375.

[59] _Ibid._, pp. 375-376.

[60] _American State Papers--Foreign Relations_, Vol. IV., p. 106.

[61] This proclamation was:

"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 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 ports that may be
established upon or near the coast of the U.S. where they will
have their choice of either entering his Majesty's sea or land
forces, or of being sent as Free Settlers to the British
possessions in North America or the West Indies where they will
meet all due encouragement.

"Given under my hand at Bermuda this 2nd day of April, 1814.

"By Command of VICE ADMIRAL WILLIAM BALHETCHET
"ALEX. COCHRANE."

_Niles Register_, Vol. VI, p. 242.

[62] Article I, Treaty of Ghent:

"There shall be a firm and universal peace between His Britannic
Majesty and the United States, and between their respective
countries, territories, cities, towns, and people, of every
degree, without exception of places or persons. All hostilities,
both by sea and land, shall cease as soon as this treaty shall
have been ratified by both parties as hereinafter mentioned. 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 excepting only the islands hereinafter
mentioned, 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. And all archives, records, deeds, and papers, either of
a public nature, or belonging to private persons which in the
course of the war may have fallen into the hands of the officers
of either party, shall be as far as may be practicable forthwith
restored and delivered to the proper authorities and persons to
whom they respectively belong. Such of the islands on the Bay of
Passama-Quoddy as are claimed by both parties shall remain in the
possession of the party in whose occupation they may be at the
time of the exchange of the ratifications of this treaty, until
the decision respecting the title to the said islands shall have
been made in conformity with the fourth article of this treaty. No
disposition made by this treaty as to such possession of the
islands and territories claimed by both parties, shall in any
manner whatever be construed to effect the right of either...."

[63] _American State Papers, Foreign Relations_, Vol. III, p. 750.

[64] _Ibid._, Vol. III, page 751.

[65] Moore's _International Arbitration_, page 350.

[66] _Naval Chronicle_, Vol. XXIV, page 213.

[67] Moore's _International Arbitration_, p. 352.

[68] _American State Papers_, Vol. IV, p. 105.

[69] _Ibid._, p. 108.

[70] _American State Papers_, Vol. IV, p. 126.

[71] Moore's _International Arbitration_, p. 363.

[72] _American State Papers, Foreign Relations_, Vol. V, p. 214.

[73] Maryland, 714; Va., 1721; S.C., 10; Ga., 833; La., 259; Miss., 22; Del., 2; Ala., 18; D. C., 3--page 801, Vol. V, _American State Papers_.

[74] Moore, _International Arbitration_, p. 377.

[75] _Ibid._, p. 377.

[76] _American State Papers, Foreign Relations_, Volume VI, page 344; 746.

[77] _Ibid._, Vol. VI, p. 746.

[78] _American State Papers, Foreign Relations_, Vol. VI, p. 348.

[79] _Ibid._, Vol. VI, p. 352.

[80] _Ibid._, Vol. VI, p. 372.

[81] _Ibid._, Vol. VI, p. 339

[82] _American State Papers, Foreign Relations_, Vol. VI, page 855.

[83] _Four Statutes at Large_, page 269.

THE NEGRO IN POLITICS[1]

A treatise on the Negro in politics since the emancipation of the race may be divided into three periods; that of the Reconstruction, when the Negroes in connection with the interlopers and sympathetic whites controlled the Southern States, the one of repression following the restoration of the radical whites to power, and the new day when the Negro counts as a figure in politics as a result of his worth in the community and his ability to render the parties and the government valuable service.

While the echoes of the Civil War were dying away, the South attempted to reduce the Negro to a position of peonage by the passage of the black codes. Many northern men led by Sumner and Stevens, who at first tried to secure the cooperation of the best whites, became indignant because of this attitude of the South and were reduced to the necessity of forcing Negro suffrage upon the South at the point of the bayonet, believing that the only way to insure the future welfare of the Negro was to safeguard it by giving him the ballot. Under the protection of these military governments, the Negroes and certain more or less fortunate whites gained political control. The southern white men, weary and disgusted because of the outcome of their attempts at secession, maintained an attitude of sullenness and indifference toward the new regime and accordingly offered at first very little opposition to the Negro control of politics. The Negroes, upon their securing the right of suffrage, however, turned at once to their former masters for political leadership,[2] but the majority of these southern gentlemen refused to "lower their dignity" by political association with the Negroes. The few southern gentlemen who did affiliate with the Negroes were dubbed "scalawags" by their former friends and cast out of southern society.

The Negroes were then forced, because of the lack of cooperation on the part of the southern whites, to accept the leadership of certain northern men who came South for the sole purpose of personal gain and exploitation. These men were in some cases of an extremely low order and were in a large measure responsible for the corruption of Reconstruction days. They were contemptuously called "carpetbaggers" by the southern whites because they were so poor that they could carry all of their possessions in a carpet bag. Some of these white men were conscientious, however, and served these States honorably. Most Negroes, therefore, were under the leadership of these three elements: southern men who were regarded by their neighbors as men of the lowest possible order, unscrupulous adventurers from the North, and some intelligent members of their own race like B. K. Bruce, John R. Lynch, R. B. Elliot, and John M. Langston. This ill-assorted group of politicians reconstructed the Southern States.

The wisdom of this policy has been widely questioned. From the point of view of most white men studying Reconstruction history this effort to make the Negro a factor in politics was a failure, the elimination of the Negro from politics was just, and the rise of the Negro to political power even today is viewed with alarm. The opinions of the biased historians in this field will be interesting. Several writers refer to the Negro carpet bag movement as an effort to found commonwealths upon the votes of an ignorant Negro electorate, as working an injustice both to the whites and the blacks in that it made the South solidly democratic.[3] J. G. de R. Hamilton, exaggerating the actual basis of Reconstruction in the southern commonwealths, which were never fully controlled by the Negroes, speaks of the work as having left as a legacy "a protest against anything that might threaten a repetition of the past, when selfish politicians, backed up by the Federal Government, for party purposes, attempted to Africanize the State and deprive the people through misrule and oppression of most that life held dear."[4] John W. Burgess calls the effort an "extravagant humanitarianism which had developed in the minds of the Reconstruction leaders to the point of justifying, not only the political equality of the races but the political superiority at least in loyalty to the Union, the constitution and republican government, of the uncivilized Negroes of the South."[5] Burgess sees justice in subjecting the inferior to the superior class but none in subjecting the superior to the inferior.

Of these radical utterances historians need take but little notice. They are of value here for the reason that they show the lack of scientific Reconstruction history. No intelligent man who lived through this stormy period or who has read documents bearing on its history will contend that these commonwealths were Africanized merely because the Negroes along with the formerly disfranchised and ignorant poor whites were given the right of suffrage. It will be difficult to prove that the majority of poor whites in the South were at this time sufficiently intelligent and experienced in statecraft to give those commonwealths a much better government than that administered by the Negroes and "Carpet baggers"; for the South had been ruled by few aristocratic families, most of whom because of participation in the Civil War, could not on the cessation of hostilities be given the reins of government. A few who had not had any such connection with the Confederacy haughtily refused to cooperate with the Negroes in the reconstruction of these governments, although they were persistently invited by the Negroes who were thus advised by Thaddeus Stevens and Charles Sumner, who showed foresight in trying to secure the cooperation of the best white element in the South.[6] These statesmen, however, are generally slandered by uninformed writers who contend that Sumner and Stevens did not thus proceed. The Negroes not only sought the leadership of the whites but showed unusual humaneness toward their poverty-stricken former masters by passing, as they did in South Carolina, stay laws to postpone the payment of their many war debts secured by mortgages on their property.

Statistics show, moreover, that with the exception of South Carolina and Mississippi, no State and not even any department of a State government was ever dominated altogether by Negroes. The Negroes never wanted and never had complete control in the Southern States.[7] The most important offices were generally held by white men. Only two Negroes ever served in the United States Senate, Hiram R. Revells and B. K. Bruce; and only twenty ever became Representatives in the House: and all of these did not serve at the same time, although some of them were elected for more than one term.

The charge that the men who were elected to office by the Negroes were always of the most debased and degenerate type is untrue. Because of the refusal of the southern aristocracy to cooperate with them, however, the Negroes were forced to elect such men as they were able to secure. Numerous promising and respectable whites who were elected to office by the Negroes, became corrupt and unprincipled on account of the treatment tendered them by the aristocratic whites. From among the Negroes themselves, the very best men available were chosen to hold offices. Among these were former slaves who had been made trustworthy servants of their masters and free Negroes who had received some education. Some of these Negroes served in their official capacity with honor and credit. A number of them were also respected by certain fairminded southern whites.[8]

Numerous examples of the high regard which the whites of certain communities had for the Negro leaders can be cited. Samuel J. Lee, of Charleston, South Carolina, was considered by his white contemporaries as one of the best criminal lawyers which the State had produced. At his death all local courts were declared adjourned and the entire city paid him homage. The late Bishop Isaac Clinton served, as Treasurer of Orangeburg, South Carolina, for eight years. Like Mr. Lee, he was held in high esteem by his white neighbors and upon the occasion of his funeral, the business of the community was suspended as a mark of respect to his memory. In certain communities, as in South Carolina, some Negroes were retained as office holders for a number of years after the supremacy of the Democratic party was assured. In Georgetown, South Carolina, Mr. George Harriot was Superintendent of Education for the county for years under the Democratic party. Beaufort, South Carolina, retained Negroes as sheriffs and school officials until a few years ago.[9]

J. T. White, Commissioner of Public Works and Internal Improvements in the State of Arkansas; M. W. Gibbs, Municipal judge in Little Rock, and J. C. Corbin, State Superintendent of Schools in the same State, had records equally as creditable. The same may be said of F. L. Cardoza, State Treasurer of South Carolina, Richard T. Greener, a professor in the University of that commonwealth, Oscar Dunn, Lieutenant-Governor of Louisiana and P.B.S. Pinchback, Acting Governor of that State.[10] The record of Dubuclet, according to Dr. Woodson, should receive special mention. In contradistinction to the rule of stealing from the public treasury, this man who served as Treasurer of the State of Louisiana even after the other departments of the government had been taken from the Negroes, in as much as the term of service of the Treasurer was six years rather than four, was investigated with a view to finding out some act of misuse of the public funds that he might be impeached and thrown out of office. The committee, of which E.D. White, now Chief Justice of the United States Supreme Court, was chairman, reported after much deliberation that Dubuclet's funds had been honestly handled and that there were no grounds on which proceedings against him could be instituted.[11]

Despite the above mentioned instances of commendable Negro officials, however, the majority of the Negro functionaries were incompetent and as a result these governments could but collapse. The charge of corruption laid at the door of the Negro carpetbagger governments is to a large extent true. The corruption resulted largely from the work of the interlopers from the North and the "scalawags," using the Negroes to reach their own personal ends. In some of this corruption, however, the Negro was an apt scholar and freely participated. The Negroes were not as a whole prepared for the political privileges which were vouchsafed to them and they were to a large extent under the wrong sort of leadership. It is equally true, however, that governments were corrupt throughout the United States at this period. The Reconstruction period was one of corruption and if the Negro governments were of a lower order than a few others, they were not far out of accord with the times. The white people, who assumed control of the government on overthrowing the Reconstruction regime, instituted in several States a rule of corruption surpassing even that of their predecessors. Coming back into office like hungry persons who had been exposed to the cold atmosphere of an exile, the radical whites filled their purses from the coffers of the public treasury and defaulted to the amount of thousands of dollars which the tax payers have had to replace in the years thereafter.[12] The disgraces of Reconstruction, therefore, have been exaggeratingly flaunted by the South for the same purpose that it proclaims the widespread false charge of rape of the present day to justify the persecution of the Negro for being "unusually criminal."

The Negro was finally driven from southern politics through violence and fraud. The chief agent of the southern whites in accomplishing this was a secret organization known as the Ku Klux Klan. This organized mob killed off or drove the leading "Carpetbaggers" out of the South and intimidated the Negroes into submission by perpetrating numerous outrages upon them. After the whites regained control of the government, through their agents of terror the political ascendancy of the Negro was at end. The unscrupulous northern friends of the Negro having discovered that they could no longer successfully exploit them, therefore, abandoned them in the midst of their calamity. The whites proceeded to solidify the Democratic party and to eliminate the Negro entirely from politics in the South.

Politically, however, Reconstruction was in several respects a success. In the first place, the reconstructed governments were democratic, lifting a standard that the backward commonwealths of the South must still struggle for years to reach. In this social upheaval the poor white man was politically emancipated by receiving the boon of suffrage theretofore restricted to persons owning property and given a free and open door to office holding, which, under the old regime had been restricted to the few aristocrats dominating the country and State governments. These Negroes gave the South its improved judicial system and did their work so well in framing some of the constitutions that many of them with the exception of the clauses antagonistic to the Negro remained about as they were for many years. Although the Democrats got control of the State in 1877, the constitution of South Carolina of 1868 was not changed materially until 1893.

The Negro as a factor in reconstruction, moreover, instituted education at the expense of the public. Through the establishment of public schools with well equipped buildings and prepared teachers they removed from that system the stigma formerly attached to persons[13] educating their children at public expense. They, therefore, made of education a foundation upon which real democracy must build. It is only short sightedness on the part of writers to infer that because the Negro was in a few years thereafter deprived of the ballot that the good work which was done during the years that they were permitted to participate in the affairs of these States could be so easily overthrown, especially so when this progressive part of the program of the reconstructed governments which the restored whites at first abandoned has later been taken up and carried out.