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The Czar and the Slaves: Two Puzzles in the History of International Arbitration

  • Bennett Ostdiek (a1) and John Fabian Witt (a2)

Abstract

In 1822, the Russian czar resolved a dispute over compensation for slaves fleeing to British lines during the War of 1812. American observers have long asserted that this canonical decision favored the United States. But new debate has recently arisen among historians. Uncovering evidence from diplomatic archives, this Article concludes that the czar did indeed side with the United States. Moreover, the case demonstrates how nineteenth-century American statesmen pressed international law into service in support of slavery.

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Copyright

Footnotes

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The authors thank Ryan Brasseaux, Jay Gitlin, Oona Hathaway, Alieta-Marie Lynch, Jim Oakes, Michael Reisman, and Anthea Roberts for helpful exchanges about the project. Lauren Miller, Elizabeth McKee, and Jordan Kindler offered invaluable research assistance, which the generosity of The Oscar M. Reubhausen Fund helped us secure.

Footnotes

References

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1 Riddell, William Renwick, Settlement of International Disputes by and Between the English Speaking Nations, 22 Yale L.J. 545, 547–48 (1913) (“The Emperor of Russia … made his award, holding Britain liable for these slaves.”); Lindsay, Arnett G., Diplomatic Relations Between the United States and Great Britain Bearing on the Return of Negro Slaves, 1783–1828, 5 J. Negro Hist. 391, 414–15 (1920) (“The point of difference was decided in favor of the United States… . [T]he Emperor held that the limitations as to the restitution of public property bore no relation to private property.”); Samuel Flagg Bemis, John Quincy Adams and the Foundations of American Foreign Policy 293 (1949) (under “the Czar's opinion … the United States was entitled to indemnity”); Bradford Perkins, Castlereagh and Adams: England and the United States, 1812–1823, 166 (1964) (“Russia decided in favor of the Americans.”).

2 Fehrenbacher, Don E., The Slaveholding Republic: An Account of the United States Government's Relations to Slavery 95 (McAfee, Ward ed., 2001) (“The imperial decision … declared that the ‘literal and grammatical sense’ of the treaty supported the American claim and that the United States was therefore entitled to a ‘just indemnification’ for the slaves carried away.”); Maya Jasanoff, Liberty's Exiles: American Loyalists in the Age of Revolution 330 (2011) (“When the United States lodged a compensation claim for evacuated slaves, Britain … agreed to pay American slaveholders … .”); Henry J. Richardson III, The Origins of African-American Interests in International Law 438 (2008) (“The Emperor of Russia … handed down his award in favor of the United States.”); Alan Taylor, The Internal Enemy: Slavery and War in Virginia, 1772–1832, 431 (2013) (asserting that “the czar understood the American idiom better than the British,” for he “rul[ed] for the republic and against the empire”); John Fabian Witt, Lincoln's Code: The Laws of War in American History 76 (2012) (“The czar … ruled that the American construction of the treaty was the sound one.”).

3 1 Moore, John Bassett, History and Digest of the International Arbitrations to Which the United States Has Been a Party 363 (William S. Hein & Co., 1995) (1898).

4 James Oakes, The Scorpion's Sting: Antislavery and the Coming of the Civil War 141–42 (2014).

5 Lauren Benton & Lisa Ford, A Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (2016); Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law (2012) [hereinafter Martinez, Slave Trade]; Manisha Sinha, The Slave's Cause: A History of Abolition 3–4 (2016); David Murray, Odious Commerce: Britain, Spain and the Abolition of the Cuban Slave Trade (1980); Alston, Philip, Does the Past Matter? On the Origins of Human Rights: The Slave Trade and the Origins of International Human Rights Law, 126 Harv. L. Rev. 2043 (2013); Bethell, Leslie, The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century, 7 J. African Hist. 79, 82 (1966); Benton, Lauren, Abolition and Imperial Law, 1790–1820, 39 J. Imperial & Commonwealth Hist. 355 (2011); Wuerth, Laurence R. Helfer & Ingrid B., Customary International Law: An Instrument Choice Perspective, 37 Mich. J. Int'l Law 563, 587–89 (2016); Scott, Rebecca J., International Law and Contemporary Slavery: The Long View, 38 Mich. J. Int'l Law 349, 350 (2017); Helfman, Tara, Note, The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade, 115 Yale L.J. 1122 (2006).

6 Martinez, Jenny, Human Rights and History, 126 Harv. L. Rev. F. 221 (2012).

7 E.g., Benton, Lauren, This Melancholy Labyrinth: The Trial of Arthur Hodge and the Boundaries of Imperial Law, 64 Ala. L. Rev. 91 (2012) [hereinafter Benton, This Melancholy Labyrinth]; Keene, Edward, A Case Study of the Construction of International Hierarchy: British Treaty-Making Against the Slave Trade in the Early Nineteenth Century, 61 Int'l Org. 311 (2007). See also Moyn, Samuel, Substance, Scale, and Salience: The Recent Historiography of Human Rights, 8 Ann. Rev. L. & Social Sci. 123 (2012); Samuel Moyn, Of Deserts and Promised Lands: The Dream of Global Justice, Nation (Feb. 29, 2012).

8 On some of the ways in which international legal institutions bolstered slavery, see David Brion Davis, The Problem of Slavery in Western Culture (1966); John Thomas Noonan, The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (1977); John Fabian Witt, Lincoln's Code: The Laws of War in American History (2012); Byers, Michael, Policing the High Seas: The Proliferation Security Initiative, 98 AJIL 526, 534–36 (2004) (observing among other things that “the United States proved to be the major obstacle to the British effort to establish a generally applicable, nontreaty right of visitation with respect to the slave trade”); Kern, Holger Lutz, Strategies of Legal Change: Great Britain, International Law, and the Abolition of the Transatlantic Slave Trade. Strategies of Legal Change, 6 J. Hist. Int'l L. 233, 258 (2004) (“British legal concepts and ideas regarding the illegality of the slave trade did not simply prevail over traditional conceptions of international law.”); Kontorovich, Eugene, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals, 158 U. Penn. L. Rev. 39, 62 (2009); Sparks, Randy J., Blind Justice: The United States's Failure to Curb the Illegal Slave Trade, 35 Law & Hist. Rev. 53, 72 (2017); Witt, John Fabian, A Social History of International Law: Historical Commentary 1861–1900, in International Law in the U.S. Supreme Court 170–71 (Sloss, David L., Ramsey, Michael D. & Dodge, William S. eds., 2011); Note, International Norms and Politics in the Marshall Court's Slave Trade Cases, 128 Harv. L. Rev. 1184 (2015).

9 The American Plenipotentiaries to the Secretary of State (Dec. 25, 1814), in 3 American State Papers: Foreign Relations 732, 73233 (William S. Hein & Co., 1998) (1832); Jon Latimer, 1812: War with America 391–92 (2007); Fred L. Engelman, The Peace of Christmas Eve 132–36 (1962); Perkins, supra note 1, at 70–127.

10 Witt, supra note 2, at 73; Frank A. Cassell, Slaves of the Chesapeake Bay Area and the War of 1812, 57 J. Negro Hist. 144, 144–49 (1972); Christopher T. George, Mirage of Freedom: African Americans in the War of 1812, 91 Md. Hist. Mag. 427, 431–34 (1996).

11 Moore, supra note 3, at 350.

12 Id. at 350–51.

13 Id. at 351; Witt, supra note 2, at 74.

15 Oakes, supra note 4, at 105–06; Witt, supra note 2, at 29; Cassandra Pybus, Jefferson's Faulty Math: The Question of Slave Defections in the American Revolution, 62 Wm. & Mary Q. 243, 248–61 (2005).

16 Oakes, supra note 4, at 132; Witt, supra note 2, at 74; Latimer, supra note 9, at 249; Cassell, supra note 10, at 150–51.

17 Witt, supra note 2, at 73–74; Cassell, supra note 10, at 154.

18 Cassell, supra note 10, at 144; see also Taylor, Internal Enemy, supra note 2.

19 Cassell, supra note 10, at 154–55.

20 Id. at 149; see also Donald Hickey, The War of 1812: A Forgotten Conflict 204 (bicentennial ed. 2012); Alan Taylor, The Civil War of 1812: American Citizens, British Subjects, Irish Rebels, & Indian allies 11213, 175 (2010); J. C. A. Stagg, Mr. Madison's War: Politics, Diplomacy, and Warfare in the Early American Republic 395, 412, n. 487 (1983).

21 George, supra note 10, at 437; Witt, supra note 2, at 73–74; Taylor, supra note 2, at 297.

22 Cassell, supra note 10, at 150; George, supra note 10, at 436; Witt, supra note 2, at 74.

23 Oakes, supra note 4, at 132; Taylor, supra note 2, at 335–42.

24 Mr. Adams to Mr. Monroe (Sept. 5, 1815), in 4 American State Papers: Foreign Relations 117, 117 (William S. Hein & Co., 1998) (1834).

25 Copy of a Projet of a Treaty of Peace Submitted by the American to the British Plenipotentiaries at Ghent, on the 10th Day of November, 1814, and of the Alterations and Propositions Made by the Latter in the Margin of the Said Projet, Returned by Them to the American Plenipotentiaries, in 3 American State Papers: Foreign Relations, supra note 9, at 735, 735 [hereinafter Projet of a Treaty] (emphasis added); see also Moore, supra note 3, at 353–54.

26 Phyllis Lee Levin, The Remarkable Education of John Quincy Adams 61 (2015).

27 Publius Valerius No. V, in 3 Writings of John Quincy Adams 69, 71 (Worthington Chauncey Ford ed., 1914); William J. Cooper, The Lost Founding Father: John Quincy Adams and the Transformation of American Politics 74 (2017).

28 Id. at 176.

29 Bemis, supra note 1, at 122.

30 Matthew Karp, This Vast Southern Empire: Slaveholders at the Helm of American Foreign Policy 7 (2016).

31 Id. at 4–5.

32 Fehrenbacher, supra note 2, at 91; see also Matthew Mason, Slavery and Politics in the Early American Republic 93 (2006) (“That John Quincy Adams should have been such a bulldog in haggling over compensation for lost human property illustrated the power of American slaveholders in shaping American policy.”); Mason, Matthew, The Battle of the Slaveholding Liberators: Great Britain, the United States, and Slavery in the Early Nineteenth Century, 59 Wm. & Mary Q. 665 (2002) [hereinafter Mason, Slaveholding Liberators]. Adams did ultimately become an outspoken opponent of slavery, aggressively attacking the institution in the 1830s and 1840s, after he had finished his term as president and entered the U.S. House of Representatives. Cooper, supra note 27, 333–42, 353–54, 373–75.

33 Seymour Drescher, Abolition: A History of Slavery and Antislavery 209–28 (2009); David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770–1823, at 20–27 (1999).

34 Drescher, supra note 33, at 205.

35 Brian Jenkins, Henry Goulbourn, 17841856: A Political Biography 49–55, 81–89 (1996); Mason, Slaveholding Liberators, supra note 32, at 676 n.46.

36 Mason, Slaveholding Liberators, supra note 32, at 671.

37 Id. at 672.

38 Id. at 667; see also Glover, Jeffrey, Witnessing African War: Slavery, the Laws of War, and Anglo-American Abolitionism, 74 Wm. & Mary Q. 503 (2017).

39 Christopher Leslie Brown, Moral Capital: Foundations of British Abolitionism 3 (2006).

40 Id. at 25.

41 Id. at 27. See also Löwenheim, Oded, “Do Ourselves Credit and Render a Lasting Service to Mankind”: British Moral Prestige, Humanitarian Intervention, and the Barbary Pirates, 47 Int'l Stud. Q. 23, 23 (2003) (using the case of the British intervention in the Algerian slave trade to argue that “the pursuit or moral prestige and credibility should also be incorporated into our understanding of humanitarian intervention”).

42 Mason, Slaveholding Liberators, supra note 32, at 673–75; Jenkins, supra note 35, at 84–85; 3 John Quincy Adams, Memoirs of John Quincy Adams, Comprising Portions of His Diary from 1795 to 1848, at 26 (Charles Francis Adams ed., Philadelphia, J.B. Lippincott & Co., 1874).

43 Jenkins, supra note 35, at 95.

44 Projet of a Treaty, supra note 25, at 735 (emphasis added); see also Moore, supra note 3, at 354.

45 Oakes, supra note 4, at 134; Witt, supra note 2, at 75–76; The Secretary of State [James Monroe] to Mr. Baker, Chargé d'Affaires of His Britannic Majesty (Apr. 1, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 106, 107 [hereinafter Monroe to Baker].

46 Protocol of a Conference Held the 1st of December, 1814, at Ghent, in 3 American State Papers: Foreign Relations, supra note 9, at 742, 742; see also Moore, supra note 3, at 354.

47 Treaty of Peace and Amity Between His Britannic Majesty and the United States of America (Dec. 24, 1814), in 3 American State Papers: Foreign Relations, supra note 9, at 745, 746 [hereinafter Treaty of Peace] (emphasis added).

48 Id. at 748; Hickey, supra note 20, at 300.

49 Mr. Baker to Mr. Monroe (Apr. 3, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 107, 107 [hereinafter Mr. Baker to Mr. Monroe].

50 5 John Quincy Adams, Memoirs of John Quincy Adams, Comprising Portions of His Diary from 1795 to 1848, at 160 (Adams, Charles Francis ed., Philadelphia, J.B. Lippincott & Co., 1875).

51 Messrs. Bayly, Graham, and Skinner to Mr. Clavelle (Feb. 23, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 108, 108.

52 Mr. Clavelle to Messrs. Bayly, Graham, and Skinner (Feb. 23, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 108, 108 [hereinafter Mr. Clavelle to Messrs. Bayly, Graham, and Skinner].

53 Admiral Cockburn to Messrs. Newell and Spalding (Mar. 7, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 111, 111 [hereinafter Admiral Cockburn to Messrs. Newell and Spalding].

54 Id. at 112.

55 Monroe to Baker, supra note 45, at 106.

56 Id.

57 Id. at 106–07.

58 Id. at 107.

59 Id.

60 Id.

61 Id.

62 Id.

63 Mr. Baker to Mr. Monroe, supra note 49.

64 Id.

65 Id.

66 Thomas Spandling, Esq. to the Secretary of State [Monroe] (May 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 113, 113; Taylor, supra note 2, at 305, 343.

67 Mr. Clavelle to Messrs. Bayly, Graham, and Skinner, supra note 52.

68 Mr. Adams to Lord Castlereagh (Aug. 9, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 115, 116.

69 Mr. Adams to the Secretary of State [Monroe] (Aug. 22, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 116, 117.

70 Lord Bathurst to Mr. Adams (Oct. 24, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 119, 119–21 [hereinafter Lord Bathurst to Mr. Adams].

71 The Secretary of State [Monroe] to Mr. Adams (Nov. 16, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 121, 121; The Secretary of State [Monroe] to Mr. Adams (Nov. 20, 1815), in 4 American State Papers: Foreign Relations, supra note 24, at 121, 121.

72 Mr. Adams to the Secretary of State [Monroe] (Feb. 17, 1816), in 4 American State Papers: Foreign Relations, supra note 24, at 122, 122; Mr. Adams to the Right Honourable Lord Viscount Castlereagh, His Majesty's Principal Secretary of State for the Department of Foreign Affairs (Feb. 17, 1816), in 4 American State Papers: Foreign Relations, supra note 24, at 122, 122–23.

73 Lord Castlereagh to Mr. Adams (Apr. 10, 1816), in 4 American State Papers: Foreign Relations, supra note 24, at 125, 125–26 [hereinafter Lord Castlereagh to Mr. Adams].

74 Messrs. Gallatin and Rush to the Secretary of State [Adams] (Oct. 20, 1818), in 4 American State Papers: Foreign Relations, supra note 24, at 380, 381 [hereinafter Messrs. Gallatin and Rush to the Secretary of State [Adams]].

75 The Secretary of State to Mr. Adams (May 21, 1816), in 4 American State Papers: Foreign Relations, supra note 24, at 126, 126.

76 Tryon, James L., The Advance Made by Treaties of Arbitration, 24 Yale L.J. 56, 57–58 (1914).

77 Francis M. Carroll, A Good and Wise Measure: The Search for the Canadian-American Boundary, 1783–1842 (2001); Carroll, Francis M., The Search for the Canadian-American Boundary Along the Michigan Frontier, 1819–1827, 30 Mich. Hist. Rev. 77 (2004); Dunbabin, John P. D., The 1831 Dutch Arbitration of the Canadian-American Boundary Dispute: Another View, 75 New Eng. Q. 622 (2002); Hathaway, Oona, Treaties’ End, 117 Yale L.J. 1236, 1291 n. 144 (2008).

78 Moore, John Bassett, The United States and International Arbitration, in Report of the American Historical Association for 1891, 65, 68–70 (Washington, Gov't Prtg. Off. 1892).

79 Mr. Adams to Lord Castlereagh (Sept. 17, 1816), in 4 American State Papers: Foreign Relations, supra note 24, at 126, 126.

80 Viscount Castlereagh to Mr. Adams (Sept. 28, 1816), in 4 American State Papers: Foreign Relations, supra note 24, at 126, 126.

81 Mr. Adams to Messrs. Gallatin and Rush (July 28, 1818), in 4 American State Papers: Foreign Relations, supra note 24, at 375, 376.

82 Convention with Great Britain (Oct. 20, 1818), in 4 American State Papers: Foreign Relations, supra note 24, at 406, 406–07 [hereinafter Convention with Great Britain].

83 Adams, supra note 50, at 160.

84 L.B. Sohn, International Arbitration in Historical Perspective: Past and Present, in International Arbitration: Past and Prospects 9, 10–11 (A.H.A. Soons ed., 1990); Werner, Jacques, Interstate Political Arbitration: What Lies Next?, 9 J. Int'l Arb. 69, 69–70 (1992); 1 Gary Born, International Commercial Arbitration 8–14 (2009). See generally Jackson H. Ralston, International Arbitration from Athens to Locarno 153–191 (1929).

85 Werner, supra note 84, at 70–71 (1992). See also Manley O. Hudson, International Tribunals: Past and Future 3–5 (Lawbook Exchange LTD 2003) (1944).

86 Born, supra note 84, at 13. See also Ralston, supra note 84, at 191 (“The modern era of arbitral or judicial settlement of international disputes, by common accord among all writers on the subject, dates from the signing on November 19, 1794, of the Jay Treaty between Britain and the United States.”).

87 The Americans had suggested that the 1818 convention specifically name the Russian emperor as arbitrator, but the British had rejected the idea “on the ground that, if he should refuse to act, the agreement would become null.” Messrs. Gallatin and Rush to the Secretary of State [Adams], supra note 74. However, by the end of 1820, President Monroe was able to officially inform Congress that the czar had indeed agreed to arbitrate the dispute. Message of the President of the United States at the Commencement of the Sixteenth Congress, Second Session (Nov. 15, 1820), in 4 American State Papers: Foreign Relations, supra note 24, at 644, 645. See also Moore, supra note 3, at 358–59. For a discussion of why the two countries selected the Russian czar to serve as arbitrator, see infra text accompanying notes 151–154.

88 The scion of one of his state's most prominent families (his grandfather had served briefly as president of the First Continental Congress and his father had signed the Declaration of Independence), Middleton served as a state representative and state senator before being elected to the governorship and then Congress. He possessed enormous wealth, owning over 1,000 slaves scattered across various plantations. Farsolas, James J., An American Ambassador at the Court of St. Petersburg, Russia: Henry Middleton of South Carolina and John Capodistrias (1821–1827), 39 Balkan Stud. 15, 16–22 (1998).

89 4 John Quincy Adams, Memoirs of John Quincy Adams, Comprising Portions of His Diary from 1795 to 1848, at 474 (Adams, Charles Francis ed., Philadelphia, J.B. Lippincott & Co., 1875).

90 Farsolas, supra note 88, at 23–31; Berquist, Harold E. Jr., Henry Middleton and the Arbitrament of the Anglo-American Slave Controversy by Tsar Alexander I, 82 S.C. Hist. Mag. 20, 22–29 (1981).

91 Farsolas, supra note 88, at 29–30; Berquist, supra note 90, at 25.

92 Count Nesselrode to Mr. Middleton (Apr. 22, 1822), in 5 American State Papers: Foreign Relations 219, 21920 (William S. Hein & Co., 1998) (1858).

93 Berquist, supra note 90, at 28 n. 19. See, e.g., Henry Middleton, Précis de la Question ou Exposé Abrégé du Différend qui Est Survenu par Rapport au Premier Article du Trait´de Gand, entre les États-Unis D'Amérique et L'Angleterre (1821), N4, Russian Foreign Ministry Archive.

94 His Imperial Majesty's Award (Apr. 22, 1822), in 5 American State Papers: Foreign Relations, supra note 92, at 220, 220 [hereinafter His Imperial Majesty's Award].

95 6 John Quincy Adams, Memoirs of John Quincy Adams, Comprising Portions of His Diary from 1795 to 1848, at 45 (Adams, Charles Francis ed., Philadelphia, J.B. Lippincott & Co., 1875).

96 See supra text accompanying note 4 (discussing the recent work of Prof. James Oakes).

97 See, e.g., Monroe to Baker, supra note 45, at 106–07.

98 See Mr. Clavelle to Messrs. Bayly, Graham, and Skinner, supra note 52; Admiral Cockburn to Messrs. Newell and Spalding, supra note 53; Mr. Baker to Mr. Monroe, supra note 49; Lord Bathurst to Mr. Adams, supra note 70.

99 His Imperial Majesty's Award, supra note 94.

100 Lord Castlereagh to Mr. Adams, supra note 73.

101 Messrs. Gallatin and Rush to the Secretary of State [Adams], supra note 74.

102 Convention with Great Britain, supra note 82, at 407.

103 His Imperial Majesty's Award, supra note 94.

104 Id.

105 Count Nesselrode to Mr. Middleton (Apr. 22, 1822), in 5 American State Papers: Foreign Relations, supra note 92, at 221, 221 [hereinafter Count Nesselrode to Mr. Middleton]; see also Annex B, FO 93/8/11, The National Archives of the UK (in French).

106 Count Nesselrode to Mr. Middleton, supra note 105 (emphasis added).

107 Oakes, supra note 4, at 141.

108 Count Nesselrode to Mr. Middleton, supra note 105.

109 Oakes, supra note 4, at 142.

110 Id.; Count Nesselrode to Mr. Middleton, supra note 105.

111 Henry Middleton to John Quincy Adams (Sept. 15, 1820), Diplomatic Dispatches, Russia, VIII, #2, U.S. National Archives. See also Berquist, supra note 90, at 23. Similarly, Richard Rush, the American minister to the Court of St. James’, explained to Middleton that if “the decision of the Emperor of Russia … be in favor of Great Britain,” then the issue of compensation for the runaway slaves would have “come to a close”; however, if “the decision be in favor of the United States, it will form only the commencement of proceedings.” Richard Rush to Henry Middleton (Aug. 10, 1820), Diplomatic Dispatches, Russia, VIII, #1, Paper A, U.S. National Archives.

112 See Martinez, Slave Trade, supra note 5, at 69; Alston, supra note 5, at 2047.

113 Convention with Great Britain under the Mediation of Russia, Explanatory of the First Article of the Treaty of Ghent, Concerning Indemnity for Slaves Carried from the United States by the British Forces in 1812–1814 (July 12, 1822), in 5 American State Papers: Foreign Relations, supra note 92, at 214, 214–17 [hereinafter St. Petersburg Convention]; see also Convention Signed at St. Petersburg on the 12 July/30 June by the Plenipotentiaries of His Imperial Majesty, of His Britannic Majesty, and of the President of the United States of America, for the Purpose of Carrying into Effect the Emperor's Decision Upon the Contested Point Arising out of the 1st Article of the Treaty of Ghent, Referred to His Imperial Majesty's Arbitration, FO 93/8/11, The National Archives of the UK.

114 Oakes, supra note 4, at 142.

115 St. Petersburg Convention, supra note 113.

116 Exchange of Ratifications, FO 94/7, The National Archives of the UK; Moore, supra note 3, at 366.

117 Moore, supra note 3, at 366, nn.1–2.

118 Id. at 370.

119 Walter Johnson, Soul by Soul: Life Inside the Antebellum Slave Market 16 (1999).

120 Id. at 3.

121 Daina Ramey Berry, The Price for Their Pound of Flesh (2016); see also Sexuality and Slavery: Reclaiming Intimate Histories in the Americas (Berry, Daina Ramey & Harris, Leslie M. eds., 2018).

122 Caitlin Rosenthal, Accounting for Slavery: Masters and Management 2 (2018).

123 Minutes of the Board (Dec. 14, 1824), American Claims 1823–1825, FO 353/92, The National Archives of the UK. See also Moore, supra note 3, at 371.

124 H. Clay to R. King (May 10, 1825), in 6 American State Papers: Foreign Relations 339, 339 (William S. Hein & Co., 1998) (1859) [hereinafter H. Clay to R. King].

125 Id. at 340. Clay maintained not only that the United States had held title to Dauphin Island since the Louisiana Purchase of 1803 but also that the question of title was irrelevant—for purposes of determining compensation under the czar's award, the only important question was whether or not the United States possessed the island at the time of the treaty's ratification. See Mr. Clay to Mr. Vaughan (Oct. 12, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 750, 751. The dispute over Dauphin Island thus illustrates the significance of the czar's seemingly declaratory pronouncement that the United States could not claim indemnification for “any American slaves who were carried away from territories of which the first Article of the treaty of Ghent has not stipulated the restitution to the United States.” His Imperial Majesty's Award, supra note 94. The stakes of the dispute over the application of the treaty to Dauphin Islands were high, for, as Clay explained, it “includes all the slaves belonging to citizens of Louisiana, to which the highest average price has been affixed.” Mr. Clay to Mr. Vaughan (Apr. 19, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 748, 748.

126 Minutes of the Board (Mar. 16, 1825), American Claims 1823–1825, FO 353/92, The National Archives of the UK. See also Moore, supra note 3, at 375–76.

127 H. Clay to R. King, supra note 124. Article V of the St. Petersburg Convention called for the commissioners to submit all disagreements over “any particular case under examination, or … upon any question which may result from the stipulations of the convention,” to one of the two arbitrators, as drawn by lot. St. Petersburg Convention, supra note 113, at 217. Jackson had refused to submit to arbitration the questions relating to omitted claims, Dauphin Island, and interest. Moore, supra note 3, at 373, 377.

128 H. Clay to R. King, supra note 124, at 342.

129 Id.

130 Id.

131 Id. at 343.

132 Id. See also Financial Statement, Morning Post, Mar. 1, 1825, British Library Newspapers, available at http://tinyurl.galegroup.com/tinyurl/8pmtBX (containing the text of a speech in which the British Chancellor of the Exchequer explained to Parliament that “we shall be obliged to pay to the United States of America by virtue of the Treaty of Ghent … pecuniary amends for certain slaves” and that the value of these slaves “would amount to not less that £250,000”).

133 Mr. Vaughan to Mr. Clay (Apr. 12, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 746, 746; H. Clay to Albert Gallatin (June 21, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 343, 343–44.

134 Mr. Gallatin to Mr. Clay (Aug. 19, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 346, 346–47; Convention with Great Britain (Nov. 13, 1826), 6 American State Papers: Foreign Relations, supra note 124, at 355, 355. See also Convention Between His Britannic Majesty and the United States of America—Signed at London, November 13th, 1826, FO 93/8/13, The National Archives of the UK. See generally Mr. Gallatin to Mr. Clay (Sept. 12, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 347–48; Mr. Gallatin to Mr. Clay (Sept. 13, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 349–50; Mr. Gallatin to Secretary of State [Clay] (Sept. 16, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 350; Mr. Gallatin to Mr. Clay (Nov. 11, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 351–53; Mr. Gallatin to Mr. Clay (Nov. 13, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 353–54.

135 John Quincy Adams to the Senate of the United States (Dec. 20, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 346; Moore, supra note 3, at 382.

136 Of course, the problem remained of how to distribute the money to the more than 1,000 individual American claimants. Congress established a commission to carry out the task, authorizing it to pay out 75% of each approved claim, with the remainder of the claim to be paid out of whatever funds remained after all claims had been judged. In order to ensure that they would be fully compensated, slaveholders from Georgia and Louisiana began aggressively questioning the validity of claimants from Maryland and Virginia, arguing that their slaves had been carried away before the treaty's ratification. Their efforts resulted in little success, however, and funds ultimately ran out well before all claims could be fully paid. See Fehrenbacher, supra note 2, at 96–97; Witt, supra note 2, at 77; Oakes, supra note 4, at 143–46.

137 See supra text accompanying note 111.

138 See, e.g., Gourevitch, Peter, The Second Image Reversed: The International Sources of Domestic Politics, 32 Int'l Org. 881 (1978); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (1984); Putnam, Robert D., Diplomacy and Domestic Politics: The Logic of Two Level Games, 42 Int'l Org. 427 (1988); Robert O. Keohane, International Institutions and State Power: Essays in International Relations Theory (1989); Haas, Peter M., Introduction: Epistemic Communities and International Policy Coordination, 46 Int'l Org. 1 (1992); Slaughter, Anne-Marie, International Law and International Relations: A Dual Agenda, 87 AJIL 205 (1993); Moravcsik, Andrew, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int'l Org. 513 (1997); Helen V. Milner, Interests, Institutions, and Information: Domestic Politics and International Relations (1997); Olsen, James G. March & Johan P., The Institutional Dynamics of International Political Orders, 52 Int'l Org. 943 (1998); Alexander Wendt, Social Theory of International Politics (1999); Hathaway, Oona A., Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev 469 (2005); Abebe, Daniel, The Global Determinants of U.S. Foreign Affairs Law, 49 Stan. J. Int'l L. 1 (2013).

139 Drescher, Seymour, Whose Abolition? Popular Pressure and the Ending of the British Slave Trade, 143 Past & Present 136, 164 (1994). See also Reich, Jerome, The Slave Trade at the Congress of Vienna: A Study in English Public Opinion, 53 J. Negro Hist. 129, 129 (1968) (explaining that “the campaign for universal abolition of the slave trade … was enjoined directly by organized and vocal public opinion” and that Lord Castlereagh and other leading British political figures “[r]epeatedly … testified to the popular pressure exerted on them and the absolute political necessity of satisfying it”). See supra notes 33–43 and accompanying text for a discussion of the British government's complicated relationship with slavery during this time.

140 Treaty of Peace, supra note 47, at 748. See also Martinez, Jenny S., Antislavery Courts and the Dawn of International Human Rights Law, 117 Yale L.J. 550, 571–72 (2008).

141 Latimer, supra note 9, at 2, 25; Hickey, supra note 20, at 5–27.

142 Perkins, supra note 1, at 122–24, 166–67, 244–45, 248–53, 263–67; Samuel Flagg Bemis, A Diplomatic History of the United States 173–75 (rev. ed. 1942); George C. Herring, From Colony to Superpower: U.S. Foreign Relations Since 1776, at 151 (2008). Indeed, the treaty that ultimately referred the runaway slave dispute to arbitration focused more on fisheries and the Canadian boundary than it did on the slave issue. Convention with Great Britain, supra note 82.

143 See Charles Bagot to Lord Castlereagh (Aug. 11, 1816), D3030/5034, Public Records Office of Northern Ireland (reporting his recent meeting with a revolutionary Mexican general); Charles Bagot to Lord Castlereagh (Jan. 7, 1817), D3030/5196 (describing the current relationship between the United States and Spain); Charles Bagot to Lord Castlereagh (Jan. 4, 1819), D3030/5679, Public Records Office of Northern Ireland (discussing the possibility of Great Britain and the United States “act[ing] in some concert … in regard to the revolutionary Provinces of South America”). See generally Perkins, supra note 1, 296–302.

144 The $1,204,960 settlement that the two parties agreed to in 1826 equaled approximately £270,000, while the United Kingdom's gross public expenditures for that year amounted to £54.1 million. Mr. Gallatin to Mr. Clay (Nov. 11, 1826), in 6 American State Papers: Foreign Relations, supra note 124, at 351, 352; B.R. Mitchell, British Historical Statistics 587 (1988). In contrast, the British government spent £20 million in compensation to slave owners after outlawing slavery in its empire in 1833. Hoppit, Julian, Compulsion, Compensation and Property Rights in Britain, 1688–1833, 210 Past & Present 93, 118–19 (2011).

145 Latimer, supra note 9, at 30–34, 60, 132–33, 223–24, 381–88.

146 Witt, supra note 2, at 72; Fehrenbacher, supra note 2, at 92–93; Oakes, supra note 4, at 115–31; Walter Stahr, John Jay: Founding Father 237–39 (2005).

147 Latimer, supra note 9, at 315–22.

148 Cf. Malintoppi, Loretta, Methods of Dispute Resolution in Inter-state Litigation: When States Go to Arbitration Rather than Adjudication, 5 Law & Prac. Int'l Cts. & Tribunals 133, 133 (2006) (arguing that “negotiating issues of considerable domestic sensitivity” might at times prove impossible, and observing that in such cases “[s]tates may find it preferable to submit such disputes to a panel of neutral judges in order to avoid making unpopular decisions and ‘lose face’ before their public opinion.” Noting further that any criticism of such a decision might “conveniently fall on the arbitral panel or the judicial body and not the relevant government”).

149 Merrills, J.G., International Dispute Settlement 111 (5th ed. 2011) (explaining that arbitration allows states achieve “a decision which is binding”).

150 Adams, supra note 50, at 160.

151 See John Quincy Adams to Thomas Boylston Adams (Feb. 14, 1810), in 3 Writings of John Quincy Adams, supra note 27, at 397, 398 (declaring that “Emperor Alexander … is a character highly distinguished among the sovereigns of the world” and describing him as “a powerful and absolute prince” whose “spirit of benevolence and humanity is … universally recognized”).

152 Farsolas, supra note 90, at 32. After the rise of the Russian Empire under Peter the Great in the early eighteenth century, diplomatic relations between Britain and Russia “oscillate[d] between friendliness and hostility.” Lobanov-Rostovsky, A., Anglo-Russian Relations Through the Centuries, 7 Russian Rev. 41, 43 (1948). Indeed, the two countries were formally at war with each other from 1807–1812, though no real hostilities occurred, and in 1815 they fought together to defeat Napoleon Bonaparte at Waterloo. Id. at 45. After the end of the Napoleonic Wars, the two empires began competing with each other in Asia. Id. at 46; see generally Gerald Morgan, Anglo-Russian Rivalry in Central Asia, 1810–1895 (1981).

153 Levin, supra note 26, at 437, 446–47.

154 See Thomas Clarkson to Lord Castlereagh (c. Oct. 1818), D/3030/5638, Public Records Office of Northern Ireland (describing his interview with the Tsar on the slave trade); Lord Castlereagh to Lord Stewart (Nov. 29, 1818), D/3030/5667, Public Records Office of Northern Ireland (describing proceedings at Aix, his interview with the Tsar, and his recent conversation with Metternich); Thomas Clarkson to [Alexander I], Emperor of Russia, and Robert Stewart, Viscount Castlereagh (Sept. 30–Oct. 5, 1818), CN59, Huntington Library, San Merino, California; Thomas Clarkson, Interview with [Alexander I,] Emperor of Russia (Oct. 9, 1818), CN 60, Huntington Library.

155 See generally Scott, Rebecca J., Paper Thin: Freedom and Re-enslavement in the Diaspora of the Haitian Revolution, 29 Law & Hist. Rev 1061 (2011); Nessler, Graham T., “They Always Knew Her to be Free”: Emancipation and Re-enslavement in French Santo Domingo, 1804–1809, 33 Slavery & Abolition 87 (2012).

156 Robin W. Winks, The Blacks in Canada: A History 114–41 (2d ed. 1997); Harvey Amani Whitfield, Blacks on the Border: The Black Refugees in British North America, 1815–1860 (2006); Whitfield, Harvey Amani, The Development of Black Refugee Identity in Nova Scotia, 1813–1850, 10 Left History 9 (2005). See also Richardson, supra note 2, at 437 (describing the agency of enslaved people in the War of 1812 disputes over slavery).

157 Martinez, Slave Trade, supra note 5, at 6, 13 (“[T]he nineteenth-century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features.”). Eugene Kontorovich observes importantly that the United States declined to enter into a bilateral slave trade treaty with the British, in part because of constitutional limits on non-Article III courts. See Kontorovich, Eugene, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, 158 U. Penn. L. Rev. 39 (2009).

158 Benton & Ford, Rage for Order, supra note 5; Benton, Abolition and Imperial Law, supra note 5; Benton, This Melancholy Labyrinth, supra note 7.

159 Bethell, Leslie, The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century, 7 J. African Hist. 79, 79 (1966) (80,000); see also Martinez, The Slave Trade, supra note 5, at 11.

160 Eltis, David, Was Abolition of the U.S. and British Slave Trade Significant in the Broader Atlantic Context?, 66 Wm. & Mary Q. 715, 722 (2009); Richard Murphy, The Limits of Law: British Efforts to Suppress the Slave Trade, 1818–1850 (Spring 2014) (unpublished B.A. thesis, University of Colorado), available at https://scholar.colorado.edu/honr_theses/171.

161 Rendall Lesaffer, Mixed Commissions, Mixed Blessings: On the British-Portuguese Anti-Slave Trade Treaty of 1817, in Oxford Public International Law (2019), available at http://opil.ouplaw.com/page/mixed-blessing. See also Richards, Jake Christopher, Anti-Slave-Trade Law, “Liberated Africans” and the State in the South Atlantic World, 1839–1852, 241 Past & Present 179 (2018); Schwarz, Suzanne, Reconstructing the Life Histories of Liberated Africans: Sierra Leone in the Early Nineteenth Century, 39 Hist. Africa 175, 201–03 (2012).

162 E.g., Helfman, Vice Admiralty, supra note 5, at 1148–52.

163 Witt, supra note 2; Witt, John Fabian, A Lost Theory of American Emergency Constitutionalism, 36 Law & Hist. Rev. 551 (2018).

164 For the Adams quotation, see supra text accompanying note 69.

The authors thank Ryan Brasseaux, Jay Gitlin, Oona Hathaway, Alieta-Marie Lynch, Jim Oakes, Michael Reisman, and Anthea Roberts for helpful exchanges about the project. Lauren Miller, Elizabeth McKee, and Jordan Kindler offered invaluable research assistance, which the generosity of The Oscar M. Reubhausen Fund helped us secure.

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