Can slaves be freed by military proclamation? President Lincoln struggled with this in 1861 when one of his General's declared emancipation by military proclamation in Missouri. But was it legal? Believe it or not, that was answered by the Emperor or Alexander in 1826 after elaborate proceedings that began in 1819 under President James Monroe.
When the Treaty of Peace was signed between Great Britain and the United States in 1783, it ended all hostilities between the Great Britain and the 13 colonies, now recognized as free sovereign and independent states. One section of this treaty turned out to be quite controversial with ramifications having impact 80 years later during the American Civil War. Article 7 stated that "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". Nevertheless, the British army carried off 3,000 slaves. According to the Journal of the American Revolution, "Negroes had served as laborers, scouts, messengers, spies, wagon drivers, and in exceptional situations as soldiers, with the understanding that the British in return offered them protection and their freedom". As proclaimed by Sir Guy Carleton (Commander-in-Chief of all British Forces), it was done to avoid violating "their Faith to the Negroes who came into the British Lines under the Proclamation of his Predecessors.” Thus in 1783, article 7 of the treaty freed 1336 negro men, 914 negro women, and 750 negro children. But in the eyes of the United States, it was a breach of article 7 of the Treaty of Peace.
In disregard to the treaty, the British government refused to pay any indemnity and the 3000 slaves were viewed as plunder or as the New York Times reported in 1861, "property of the captors". Both, the Congress of the Confederation and President Washington complained that the treaty of Peace was not yet fully fulfilled. The claim for indemnity of the 3000 slaves remained a controversy until it was abandoned in 1796 when Jay's treaty was concluded. But then during the War of 1812, the British once again returned to the strategy of promising slaves their freedom in return for fighting along side the British. In all, more than 4000 people were freed from slavery during the war. At the end of the war, Americans demanded that their slaves be returned or they receive indemnity for their loss of property. When the treaty of Ghent was signed in 1814, article one of the treaty stated that all territories taken from either party during the war would be restored without delay and that all property captured including slaves would be returned. Yet, again the British refused to return the freed slaves or pay indemnity.
In the immediate years following, the United States and Great Britain continued negotiations. The British government explained that their interpretation of the clause meant that only slaves originally captured within the forts would be subject to the treaty. In their opinion, the treaty did not apply to any slaves who were induced to run away of which this was the majority. On the other hand, the United States maintained that slaves were private property, subject to compensation if carried away, no matter how they were acquired. Neither side would budge, and after considerable dispute, it was agreed that the matter would be taken to an arbitrator. As President Monroe explained in his 1819 State of the Union address to Congress, the matter would be "referred to the decision of some friendly sovereign or state to be named for that purpose". This process outlined in article 5 of the treaty which stated that "in the event of the said two Commissioners differing, or both, or either of them refusing, declining, or willfully omitting to act" the matter would be referred to a "a friendly Sovereign or State".
"By the 5th article of the convention concluded on [1818-10-20], it was stipulated that the differences which have arisen between the two Governments with respect to the true intent and meaning of the 5th article of the treaty of Ghent, in relation to the carrying away by British officers of slaves from the United States after the exchange of the ratifications of the treaty of peace, should be referred to the decision of some friendly sovereign or state to be named for that purpose. The minister of the United States has been instructed to name to the British Government a foreign sovereign, the common friend to both parties, for the decision of this question. The answer of that Government to the proposal when received will indicate the further measures to be pursued on the part of the United States."The two countries agreed to submit the dispute to Alexander, Emperor of Russia". In a final decision, the Emperor of Russia ruled on the side of the United States with these words:
"in quitting the places and territories of which the Treaty of Ghent stipulates the restitution to the United States, His Britannic Majesty's forces had no right to carry away from the same places and territories, absolutely, any slave, by whatever means he had fallen or come into their power."
In his 1820 State of the Union Address, Monroe briefly mentioned that the Emperor of Russia had accepted the request to umpire the dispute between the U.S. and the British government.
"The question depending between the United States and Great Britain respecting the construction of the first article of the treaty of Ghent has been referred by both Governments to the decision of the Emperor of Russia, who has accepted the umpirage."And again, in his 1821 State of the Union Address, Monroe again briefly mentioned that the answer to article V which was "submitted to the decision of His Imperial Majesty the Emperor of Russia" had not yet been received, but would be coming very soon.
"The question concerning the construction of the first article of the treaty of Ghent has been, by a joint act of the representatives of the United States and of Great Britain at the Court of St. Petersburg, submitted to the decision of His Imperial Majesty the Emperor of Russia. The result of that submission has not yet been received. The commissioners under the 5th article of that treaty not having been able to agree upon their decision, their reports to the two Governments, according to the provisions of the treaty, may be expected at an early day."And, finally in 1822 a message was received. Monroe reported in his address of that year, that the message had been received and would be placed before the Senate for "advice and consent as to ratification". If the Senate ratified, it would then be brought before the entire Congress to determine what provisions if any would require the assistance of the Legislature.
"The decision of His Imperial Majesty the Emperor of Russia on the question submitted to him by the United States and Great Britain, concerning the construction of the first article of the treaty of Ghent, has been received. A convention has since been concluded between the parties, under the mediation of His Imperial Majesty, to prescribe the mode by which that article shall be carried into effect in conformity with that decision. I shall submit this convention to the Senate for its advice and consent as to the ratification, and, if obtained, shall immediately bring the subject before Congress for such provisions as may require the interposition of the Legislature."In 1825, President John Quincy Adams reported during his first State of the Union that some problems continued to plague the commission appointed to "ascertain the indemnities", apparently Great Britain was dragging their heals.
"The other commission, appointed to ascertain the indemnities due for slaves carried away from the United States after the close of the late war, have met with some difficulty, which has delayed their progress in the inquiry. A reference has been made to the British Government on the subject, which, it may be hoped, will tend to hasten the decision of the commissioners, or serve as a substitute for it."In the end, Great Britain was forced to pay $1,204,960 as indemnity for the slaves carried off during the War of 1812. In 1827, President Adams again reported on the indemnity payments. This time he had joyful news that the payments had been made in the sum $1,204,960. Adams explained that the money was being paid to the claimants and this final disposal had put an end to "one of the most painful topics of collision" between the U.S. and Great Britain without any more bloodshed.
"The purposes of the convention concluded at St. Petersburg on 1822-07-12, under the mediation of the late Emperor Alexander, have been carried into effect by a subsequent convention, concluded at London on 1826-11-13, the ratifications of which were exchanged at that place on 1827-02-06. A copy of the proclamations issued on 1827-03-19, publishing this convention, is herewith communicated to Congress. The sum of $1,204,960, therein stipulated to be paid to the claimants of indemnity under the first article of the treaty of Ghent, has been duly received, and the commission instituted, comformably to the act of Congress of 1827-03-02, for the distribution of the indemnity of the persons entitled to receive it are now in session and approaching the consummation of their labors. This final disposal of one of the most painful topics of collision between the United States and Great Britain not only affords an occasion of gratulation to ourselves, but has had the happiest effect in promoting a friendly disposition and in softening asperities upon other objects of discussion; nor ought it to pass without the tribute of a frank and cordial acknowledgment of the magnanimity with which an honorable nation, by the reparation of their own wrongs, achieves a triumph more glorious than any field of blood can ever bestow."In the end, the delay was not about the money. As the New York Times reported in 1861, "It was not the value of the slaves that induced Great Britain to quibble for so many years, but it was the loss of an advantage in case of another war with the United States. It was establishing a precedent that would prevent her operating among the slaves in the Southern States." That precedent set not only had huge implications for Great Britain, but for the United States as well. It was one that no doubt weighed heavily on Lincoln's mind in August of 1861 when General Fremont instituted martial law in Missouri declaring that all slaves would be confiscated and subsequently set free. Abraham Lincoln responded in a confidential letter regarding the matter:
"If a commanding General finds a necessity to seize the farm of a private owner, for a pasture, an encampment, or a fortification, he has the right to do so, and to so hold it, as long as the necessity lasts; and this is within military law, because within military necessity. But to say the farm shall no longer belong to the owner, or his heirs forever; and this as well when the farm is not needed for military purposes as when it is, is purely political, without the savor of military law about it. And the same is true of slaves. If the General needs them, he can seize them, and use them; but when the need is past, it is not for him to fix their permanent future condition. That must be settled according to laws made by law-makers, and not by military proclamations."
please note, in no way do I condone slavery, nor support the notion of a slave being property, I am merely providing historical context to the words of our presidents.
http://www.presidency.ucsb.edu/ws/index.php?pid=29461
http://www.presidency.ucsb.edu/ws/index.php?pid=29462
http://www.presidency.ucsb.edu/ws/index.php?pid=29463
http://www.nytimes.com/1861/09/16/news/great-britain-and-slaves-taken-in-war.html
https://allthingsliberty.com/2016/08/how-article-7-freed-3000-slaves/
http://avalon.law.yale.edu/18th_century/paris.asp
http://avalon.law.yale.edu/19th_century/ghent.asp
http://www.pbs.org/wned/war-of-1812/essays/black-soldier-and-sailors-war/
https://en.wikipedia.org/wiki/Fr%C3%A9mont_Emancipation
https://civilwartalk.com/threads/was-the-emancipation-proclamation-legal.46780/
https://upload.wikimedia.org/wikipedia/commons/4/47/Runaway_slave.jpg
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