In mid-July, Webster called the attorney general into the discussion with Lord Ashburton on the subject of the Creole. Hugh Swinton Legare had been a political figure in South Carolina and was a recognized expert in the law of nations (today’s international law). Legare had studied in the United Kingdom and elsewhere in Europe, and was quite familiar with Continental views of maritime rights and obligations. At the end of the discussion, Ashburton asked Legare to reduce his remarks to writing, and the attorney general agreed.
Legare’s position was clear and compelling. He acknowledged that in the eyes of English law, slaves are not things but persons, and they have a right to the protection of that law. Accordingly, England could prohibit the importation of slaves, but that does not give England the right to take possession of a ship in distress and to set the persons on board at liberty. American ships driven into English harbors by the dangers of the seas are not to be held accountable for what they contain when they are driven in. Legare flatly protested the interference of British authorities, who had no right to interfere on any matter of municipal law. America had every right to insist that other countries acknowledge personal capacity or status, such as marriage or slavery. Continental lawyers maintain that such laws follow the person, and so interference with persons on a foreign ship on the basis of status is “a gross violation of international comity.”[34]
Legare explained that a ship at anchor in a foreign harbor preserves its jurisdiction and laws—and this proposition would command universal assent, but for the “peculiar feelings” that attach to all matters relating to domestic slavery. Hypothetically, if a man were to commit murder on the high seas, and was chained, and the ship entered a British port, and if that man sought a writ of habeas corpus, claiming that he was imprisoned within British territory for no offense against English law, no judge or lawyer in England would free him. Legare would concede, for the sake of argument, that a ship voluntarily entering British ports with an awareness of English law may be taken to have voluntarily submitted to that law. But in the case of compulsory entry, “no authority, or principle, or analogy of the law of nations, will justify” the enforcing of local English law on board that ship. All nations agree that a ship in distress is not bound to pay local duties, and English law specifically makes that clear.
The power of the attorney general’s lengthy Opinion must have had an impact on Lord Ashburton, not only because of Legare’s recognized stature in the law, but also because he was a politician from slaveholding South Carolina.[35] In addition, Ashburton came to understand the fears of the Southerners that the British action in Nassau exposed the entire American maritime domestic slave trade to great risks.
At the very end of July, after the Northeast boundary issue was resolved, but before the final resolution of the Creole matter, Webster hosted a grand dinner at his house to celebrate. The president and the entire cabinet attended, along with a few select senators and delegations from Maine and Massachusetts. Webster toasted Queen Victoria; Ashburton’s reply toast was to the president and to the perpetuity of the institutions of the United States. Finally, President Tyler addressed the Maine and Massachusetts delegations, and toasted: “Blessed are the peacemakers.”[36]
The heat and humidity in Washington must have been oppressive for the two negotiators, fraying their nerves and adding to their discomfort with the political problems.[37] One can imagine Ashburton and Webster sitting together in Webster’s Swann House, or at Ashburton’s nearby residence, or across the park at the State Department’s offices. One scholar explained the procedure: “These friendly conferences, to which Webster willing assented, took the place of formal negotiations and were carried on without the exchange of written papers, until the time came to cast the final results into shape for presentation.”[38] There are no minutes of these meetings, and no official record was kept.
The result of these exhausting and frustrating deliberations was an exchange of diplomatic notes in early August, the effect of which was to resolve the Creole problem and so to permit the logjam of other issues to be incorporated into treaty form. The notes are quite fascinating, and reflect important issues of international law; they are also interesting political documents. They are set out in full in appendix III.
It is not clear whether each side shared with the other a draft of each note and welcomed suggestions for improvement. It would not be surprising if that were how they conducted themselves, given their trusting working relationship. It is also possible that each note was prepared and exchanged at arm’s length. In any event, both men must have been fully aware that the notes would become available to the public and eventually would have many different audiences. For Webster, he had to keep one eye on how the Senate would take them, for the Senate was a necessary actor in the entry into force of the treaty. He also had to walk the thin political line between not offending too much the liberal and abolitionist interests in his New England political base, while at the same time ensuring that he delivered the message to the South that he was protecting their interests.
For Ashburton, the political elements were somewhat less important, since he did not look for any personal political future. Of course, he had to ensure that his actions would not be rejected by Parliament, since that too would lead to the scuttling of the treaty. He had to be mindful of the very strong antislavery sentiment in the United Kingdom, and so he had to avoid any steps that might suggest that he was endorsing or cooperating with the evils of slavery. Ashburton also suffered the disadvantage of being alone, three thousand miles from his government, and confronting the problem of some six weeks’ duration between the time he would ask a question of London and would receive London’s answer. He must have envied Webster’s ability to walk across the park to consult with President Tyler.
Secretary Webster’s note was dated August 1. It is long, and mostly reads like a lawyer’s brief. He set the groundwork by acknowledging that Ashburton was not empowered to put the Creole issues into the treaty, by not asking for compensation for the loss of the slaves, by acknowledging that the facts are “controverted” and so he would ignore them, and by explaining that his approach is future oriented only and desirous of “practical means of giving security to the coasting trade” of the United States. Webster’s note makes no claim for the return of the slaves, because they had vanished, and could not have been returned even if the British were so inclined. In a smart political gesture, Webster also explained the importance of the coastal trade by pointing to the products of the Mississippi Valley, “a region of vast extent and boundless fertility,” which were exported along that route—a nod to the Westerners that he was looking out for their interests too. In a bow to the South, Webster pointed out that slavery exists “under the guarantee of the Constitution of the United States.” (He also must have had a twinkle in his eye as he reminded Ashburton that America’s slaves were introduced and maintained by Britain during the colonial period.)
While pointing out that the facts are controverted, Webster introduced the term “officious[39] interference” to describe the actions of the Nassau authorities in setting the Creole’s slaves free. He used the term twice in the first few paragraphs, but only there. He did not define the term.
The core of the note is a brilliant lawyer’s brief setting out the legal regime in which the Creole existed while it was at anchor in Nassau’s harbor (i.e., it remained as if it were part of US territory, under US jurisdiction, although that was not exclusive jurisdiction in the sense that persons on board might not violate local law). Thus, if a murder took place on the vessel while in port, “the offense is cognizable and punishable by the proper court of the United States.” (Webster wisely did not charge the British with a gross violation of law by not permitting the return of the seventeen slaves from British custody to the United States for trial.) On the other hand, Webster made clear that when American slaves escape into British territories, no one in the United States expects them to be returned; similarly, if persons who ar
e charged with crimes seek asylum in British territory, their return is not expected, since the United States had no extradition treaty with the United Kingdom.
Near the end of his long note, Webster complimented Ashburton, and at the same time brought in the notion of the threat to trade and commerce: “Your Lordship’s discernment and large experience in [commercial] affairs can not fail to suggest to you how important it is to merchants and navigators . . . that they should feel secure against all but the ordinary causes of maritime loss.”
Then, at the very end of the note, Webster made a proposal: yes, we know that you are not empowered to treat this topic in the treaty, but you surely know your government’s views well enough to “engage that instructions shall be given to the local authorities in the islands, which shall lead them to regulate their conduct in conformity with the rights of [US citizens] and the just expectations of their Government.” This last offering was quite in contrast to the style and content of most of the document, and it introduced a completely new approach. It is not known whether this was solely Webster’s idea, or whether both men fashioned it collaboratively, and structured it as an invitation by Webster. Webster closed his note with a reminder that it would be “with the most profound regret” that these negotiations should conclude with nothing being done on this topic, which would be a “dangerous source of future collisions” between the two countries.
Lord Ashburton responded with a note dated August 6. It is less than half the length of Webster’s note, and is a very strange document.
Ashburton began by explaining why he was not empowered to deal with the Creole issues in the treaty: the case of the Creole was known in London only a few days before his departure for the United States, and so it was not a subject that immediately concerned his mission, and no complaint had yet been made by Minister Everett. This was probably a stretch of the time line facts, though technically accurate. Webster’s long dispatch to Minister Everett was not sent until January 29, 1842, and Ashburton left the United Kingdom for Washington in mid-February, and so it is likely that Webster’s complaint did in fact arrive only days before Ashburton’s departure. On the other hand, Governor Cockburn reported the Creole incident immediately, and that information was at the disposal of Aberdeen no later than mid-December, and, unquestionably, it played a significant role in the decision to send Ashburton on his mission to Washington. Thus, there was ample time to provide instructions to Ashburton before he left. Nevertheless, Ashburton quickly acknowledged in his note that he understood the importance of the issue.
In the second paragraph of his note, Ashburton stated his “conclusion” that the issue would be better dealt with in London, not in Washington. Just in case this conclusion was missed, Ashburton repeated it twice in the very next paragraph: “I strongly recommend this question of the security of the Bahamas channel being referred for discussion in London.” Ashburton explained the reasons for his insistence that the topic be addressed in London and not in Washington: the real issues are ones of national and international law, and in London the “highest authorities” are available to consult. In somewhat more personal terms, Ashburton explained that he—as an extremely successful investment banker—would be comfortable dealing with the usual commercial issues, but he was uncomfortable with these deep legal matters. In contrast, Ashburton complimented Webster on his “very elaborate” legal argument, to which Webster’s professional “authority necessarily gives great weight.” Finally, these broad and important legal principles—which were now being considered only in the very narrow case of the Bahamas—could have a global impact on British interests (for example, in Singapore, Cape Town, or Bombay).
Ashburton acknowledged Webster’s admission that the United States did not seek the return of any escaped slave, and, reciprocally, Ashburton promised that the British would not act as “decoys” to attract slaves in violation of American law. On the other hand, when a slave reaches British territory, the law is clear (though Ashburton wisely does not state the law). To make the point, Ashburton stated that a slave reaching the shore of Nassau would be treated exactly the same as a “foreign” slave reaching Boston under any circumstances. The qualifying term “foreign” is ambiguous, perhaps intentionally so. Surely, Ashburton knew the obligations of authorities in Boston under the Fugitive Slave provision of the Constitution and the 1793 statute with respect to the return of fugitive slaves.
Once again, Ashburton complimented Webster on his “evident ability” in presenting the range of legal principles engulfing the Creole, and explained that he would not “pretend to judge them.” For the fourth time in this note, Ashburton confirmed his opinion that the “subject be referred to where it will be perfectly weighed and examined”—London. Thus, for the first nine paragraphs of the note, Ashburton drove home the single message: I can’t deal with this subject; it has to be moved to London for resolution.
The tenth paragraph seems to have absolutely nothing to do with the previous nine paragraphs, as if someone else had written it in a totally different context. It states:
In the meantime, I can engage that instructions shall be given to the Governors of her majesty’s colonies on the southern borders of the United States to execute their own laws with careful attention to the wish of their Government to maintain [a] good neighborhood, and that there shall be no officious interference with American vessels driven by accident or by violence into those ports. The laws and duties of hospitality shall be executed, and these seem neither to require nor to justify any further inquisition into the state of persons or things on board of vessels so situated, than may be indispensable to enforce the observance of the municipal law of the colony, and the proper regulation of its harbors and waters. (emphasis added)
Ashburton’s “engagement” thus picked up on Webster’s hint at the end of his long note of five days earlier that his Lordship might be able to “engage that instructions be given” to the colonial authorities so as to take away all reasonable American complaints. Ashburton concluded by expressing the hope that these new rules will avoid “any excitement or agitation on this very sensitive subject of slavery.”
Two days later, Webster sent his brief reply ote. He explained that there “may be weight” to Ashburton’s recommendation to refer the matter to London—if we really need to have this resolved by formal treaty.
Nevertheless, the president relied on the principles of law set out in Webster’s first note, and also on Ashburton’s “engagement”—which is then quoted in full. Thus ends this diplomatic exchange. And the logjam that had held up the treaty was broken.
What, exactly, did Ashburton promise? Little more than the following: local law would be executed in a manner that was not annoying, and any inquiry—about whether anyone on board was a slave—would be permitted only when it was absolutely necessary to comply with local law. One hundred and thirty years later, the value of diplomatic “constructive ambiguity” was reestablished in the Nixon-Mao “Shanghai Communiqué”;[40] perhaps Webster and Ashburton had anticipated that idea.
On August 9, Lord Ashburton sent his correspondence with Webster to London for Lord Aberdeen and offered an explanation for its contents. Ashburton said that some official statement about the Creole had become “essential to the safety of the treaty [and it] had proved the most difficult of all the topics”[41] that he had to deal with. Interestingly, Ashburton claimed that Webster’s note was designed to protect his popularity in the South, and Ashburton’s own note was designed to “evade any engagement,” while at the same time maintaining British principles with respect to slavery. In short, Ashburton asserted: “To say something conciliating was indispensable to the safety of our other objects.”[42] Finally, Ashburton expressed the hope that his extremely vague “pledge” as to the future conduct of British colonial authorities would not be disavowed by London. Clearly, Ashburton was signaling that the entire treaty house of cards could come tumbling down if this cornerstone were withdrawn.
Webster
and Ashburton signed two treaties on August 9. One dealt with the boundary issue, and the other dealt with all other issues. This arrangement was to satisfy Ashburton, who feared that opposition in the Senate to the African slave and extradition articles might sink the boundary settlement. However, the next day Ashburton yielded, and the two treaties were combined into one, retaining the August 9 date. The Treaty of Washington, as it was then called, contained ten articles: the first seven concerned boundary issues, VIII and IX concerned the establishment of joint antislavery squadrons off the African coast; Article X provided for extradition for a series of crimes including murder (but not mutiny). The last two articles dealt with the treaty’s duration and site for the exchange of ratifications. Ashburton wrote to Aberdeen on that day and reported that it was not one of the happiest days of his life, because of the Creole “plague.”[43] Ashburton was chagrined that no real conclusion could be reached on the Creole matter and that the topic could not be included in the treaty. Nevertheless, the fact that the treaty was not imperiled is a tribute to the skill of the negotiators.
President Tyler sent the treaty to the Senate on August 11. In his Special Message, Tyler also included the texts of notes exchanged in the context of the negotiation dealing with the Caroline, impressment, and the subject of the “interference of the colonial authorities of the British West Indies with American merchant vessels driven by stress of weather or carried by violence into the ports of those colonies.” (Tyler neglected to mention that the “merchant vessels” that sparked the controversy were in fact slave ships.) Tyler explained that “a confident hope is entertained that the correspondence . . . showing the grounds taken by this Government and the engagements entered into by the British Minister, will be found such as to satisfy the just expectation” of the American people.
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