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]