away from St. Simon's Island; (2) consequent loss of crops. from 1815 to 1824; (3) interest at 8 per cent, the legal rate in Georgia, on those items. Mr. Cheves held that the first item was established. The second item he rejected as on its face inadmissible. As to interest on the value of the slaves carried away, he held that reasonable damages for the withholdment of a right were necessary to compensate the sufferer for the injury so sustained, and that such damages were measured in the present case by interest at the legal rate in the State of Georgia, where the slaves were taken. "A just indemnification," said Mr. Cheves, "is the reestablishment of the thing taken away, with an equivalent for the use of it during the period of detention." This was also the general rule adopted by claims commissions. In this relation he referred to the proceedings under the sixth and seventh articles of the Jay Treaty of 1794.

On the 16th of March Mr. Jackson replied. Adverting to the fact that the question was not what slaves were carried away from the territories or waters of the United States by His Majesty's forces during the war, but whether the slaves claimed in each particular case were so carried away after the exchange of the ratifications of the Treaty of Ghent, he said that he considered the evidence on this point unsatisfactory. But he wouid meet the American commissioner on the question of damages on the grounds the latter had taken. These Mr. Jackson classed as follows: (1) Principles of justice and equity; (2) the authority of precedent; and (3) a reasonable and necessary construction of the convention. The last ground Mr. Jackson discussed first. After quoting the language of the fifth article of the convention of October 20, 20, 1818, he said that on this article was founded the convention of St. Petersburg of 1822; and he contended that under these conventions the value of the slaves was the compensation to be made. This view was, he said, enforced by the provision that the board should ascertain the average value of the slaves. This being fixed, the only duty of the commissioners, and their only power or authority, after procuring the list of slaves provided for in the third article of the convention of St. Petersburg, was to examine persons or receive depositions touching the real number of slaves. If the convention intended that the commissioners should allow damages as well as the value of the slaves, it was inconceivable that the power

should not have been given to the commissioners to ascertain by evidence the amount of such damages; and if it was intended that interest should be arbitrarily fixed upon as the standard of damages it was equally inconceivable that the convention should have been silent upon the subject.

Referring to precedents, Mr. Jackson adverted to a letter of Mr. Jefferson, as Secretary of State, to Mr. Hammond, the British minister, dated at Philadelphia May 29, 1792, in which Mr. Jefferson, referring to claims growing out of impediments to the recovery of debts under the treaty of peace of 1783, argued that interest, not being part of the debt, was not allowable. Mr. Jackson admitted that under Article VI. of the treaty of 1794 interest was allowed; but interest might, he said, be considered ordinarily to attach to a debt as an incident, as in cases under that article. The twenty-third article of the convention between the United States and France of September 30, 1800, contained an express provision for interest. A similar stipulation was contained in a subsequent treaty between the same parties of April 30, 1803. On the strength of these stipulations, Mr. Jackson said he was justified in contending that whenever in a treaty the United Stated meant to stipulate for interest they took care to include an express provision to that effect. In regard to the proceedings of the commission under the seventh article of the treaty of 1794, Mr. Jackson argued that they could not be considered as a precedent, because that article provided for full and adequate compensation not only for losses but also for the damages sustained. Under these stipulations, as he construed them, the value of the property captured and condemned constituted the loss, and interest was allowed as compensation for the damages sustained in consequence of that loss.

Referring to the grounds of justice and equity, Mr. Jackson said that he could not treat the case, as the American commissioners had done, as one between individuals. It did not originate in any wrong conceded by Great Britain to have been committed by her toward the United States, but simply in a reference of a claim to the decision of the Emperor of Russia for the purpose of cementing a good understanding. The slaves came lawfully into the possession of His Majesty's forces, flagrante bello. In such possession they were considered and treated as free, and no use or profit was made of them. The protection promised them when they took refuge with the British forces forbade their being delivered up.

On the 23d of March Mr. Cheves presented an answer to the argument of the British commissioner, both on the question of property in the slaves at the time of their taking away and on the question of interest and damages.

Mr. Cheves offered to submit the question of interest to one of the arbitrators, but Mr. Jackson declined to do so, on the ground that interest was clearly excluded by the convention. Yet another unyielding difference arose in Dauphin Island. relation to some of the Louisiana claims for slaves carried away from Dauphin Island, in Mobile Bay. This island was occupied by British forces during the war, and was surrendered by them at its close; but Mr. Jackson maintained that it was not, at the time of the exchange of the ratifications of the Treaty of Ghent, lawfully a part of the United States; that it was not an appendage of Louisiana, but belonged to West Florida, which was not ceded to the United States till 1819. This objection embraced perhaps the greater part of the slaves alleged to have been carried away from Louisiana. Mr. Cheves refused to discuss the right of the United States to the island, but offered to refer the claims in respect of which the question arose to one of the arbitrators. This Mr. Jackson declined to do.

ment.

On April 27, 1825, the commissioners adClay's Offer of Settle- journed to the 8th of the ensuing December, partly for the purpose of affording an opportunity for the production of evidence. On the 10th of May, a month after their adjournment, Mr. Clay, who had then become Secretary of State, instructed Rufus King, the newly appointed minister to England, to sound the British Government as to a compromise of the claims by the payment of a gross sum of money, and if this suggestion should not be favorably received to "urge the British Government to infuse a better spirit into their commissioner, and, especially, that they instruct him to execute the fifth article of the convention according to its true intent and meaning, by referring to the arbitrator all the questions on which he and Mr. Cheves have disagreed," and "all other questions on which, from time to time, the commissioners, during the future progress of the board, may, unfortunately, happen to disagree." As to the basis of a compromise for a lump sum, Mr. Clay said that the total number of slaves on the definitive list was 3,601. The entire value of all the property for which indemnity was claimed, including interest, might be

stated at $2,693,120. If that sum could be obtained every claimant might be fully compensated. But, as so large a sum could hardly be expected, Mr. Clay set forth his views as to the deductions which would probably be made if the commission should proceed to fulfill its duties. And first, as to slaves, he said that upwards of 2,100 were carried away from Maryland and Virginia, and that of this number probably not more than 500 would be brought by the proof within the terms of the Treaty of Ghent. Of the 1,201 left, after deducting 2,400 from the whole number on the list, the greater part were taken from Georgia and Louisiana, and all these were supposed to be comprehended in the provisions of the treaty. The slave account might therefore, said Mr. Clay, be conjectured to stand thus: 500 from Maryland and Virginia, at $280. 250 from Louisiana, at $580.... 900 from Georgia, etc., at $390.

Producing, without interest.

$140,000

145,000

351,000

636,000

Of the claims for personal property other than slaves the estimated value was about $500,000. But many of these claims were, said Mr. Clay, clearly not within the terms of the Treaty of Ghent. For example, there was a large item for tobacco destroyed in 1814. It was believed that $250,000 was as large an amount as would be obtained for all the property other than slaves; and the total amount of all the private property of every kind to be paid for might be assumed to be $886,000, exclusive of interest. Ten years' interest, amounting to $531,600, would bring the total up to $1,417,600. Mr. Clay however observed that if the question of interest were submitted in each case to the arbitrator, the amount might be less. The lot would have to be cast in each case; and on the supposition that the British arbitrator would be chosen as often as the American and that he would disallow the claim for interest, one-half should be deducted from the preceding estimate, or $265,800. Subtracting this from the aggregate above mentioned, it would leave $1,151,800 as the highest sum which would probably be awarded by the commission. This sum might therefore be treated in the negotiation as a minimum. Mr. Clay observed that in the estimates laid before Parliament for that year there was an item of £250,000, to cover the awards of the commission. This was nearly the sum which the United States had mentioned as a minimum. In the course of his instructions

1 Am. State Papers, For. Rel. VI. 314.

Mr. Clay clearly pointed out the vicious plan of the convention, whereby the commissioners were required to cast lots for an arbitrator in each case of difference; a plan likely to result in confused and contradictory decisions as well as in delay.'

2

The British Government did not receive Mr. British Reply. Clay's propositions with favor. On the contrary, Mr. Vaughan, the British envoy at Washington, in a note to Mr. Clay of April 12, 1826, summed up the result of the correspondence on the subject between Messrs. King and Canning at London, by saying 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." Mr. Vaughan furthermore declared that His Majesty's government could not admit that the question of interest should be referred to arbitration-that the demand for interest was unwarranted by the convention, and was declared to be unfounded by the law officers of the Crown. Mr. Clay, expressing surprise at these declarations, pointed out that the question of interest was not the only one which the British commissioner had refused to refer, and that if his refusal to cooperate in the choice of an arbitrator should be upheld it would virtually be making him the final judge of every question of difference that arose in the joint commission. Mr. Vaughan in reply maintained that each commissioner must judge for himself as to the course he would take, and observed that while the British commissioner had refused to refer certain questions, the American commissioner had done the like in respect of the question as to the inspection by claimants of the evidence in the possession of the British Government. Responding to this observation, Mr. Clay said that the proposal of the British commissioner to refer the question as to the inspection of the list of deported slaves was an abstract proposal, there being at the time no case under examination to which it attached itself, and that at a subsequent period of the proceedings the American commissioner offered to refer that and every other question on which he and his colleague might disagree to the arbitration prescribed by the

1 Am. State Papers, For. Rel. VI. 339.

2 Am. State Papers, For. Rel. VI. 716.

3 Mr. Clay to Mr. Vaughan, April 15, 1826. (Am. State Papers, For. Rel. VI. 746.)