#### *Foushee Adm’r &c. v. Blackwell & Wife.

February, 1843,

Richmond.

(Absent Cabem., P., and Stanard,* J.)

Slaves—Treaty of Ghent—Widow’s Interest in Honey Received for Deported Slaves,—Under the first article of the treaty of Ghent, and the subsequent conventions between the United States and Great Britain, of London in October 1818, and of St. Petersburgh in July 1822, the owners of slaves which were carried away from the territories of the United States by the british forces at the close of the late war, were entitled to indemnity for all such slaves, but not to the slaves in specie: anda citizen of Virginia, the owner of certain slaves so deported, having died in 1825 withoutissue, leaving his wife surviving him, and bis administrator having afterwards received, under the act of congress of the 2d March 1827, a sum of money as indemnity for those slaves, the widow is entitled to half the distributable surplus of that money, as her absolute property, not merely to such interest therein as she would have been entitled to in the slaves.

.During the late war between the United States and Great Britain, certain slaves, the property of Kenner W. Cralle, late of Northumberland, eloped to and were carried away by the enemy, and never returned or were restored to the owner. Cralle died in 182S, leaving his wife Mary him surviving, but without any child or issue. Administration of Cralle’s estate was granted to Griffin H. Foushee, who preferred a claim before the commissioners appointed to award indemnity for slaves deported by the enemy, under the treaty of Ghent, and received a large sum of money upon that claim. Mary, the relict of Cralle, married Thomas Blackwell.

Blackwell and wife, in a bill filed in the superior court of chancery for the Fredericksburg district, against Foushee administrator and distributee of Cralle, claimed one half of the money which he had received as indemnity for the deported slaves, to hold in absolute property, in *like manner as mrs. Blackwell’s distributive portion of any other money belonging or due to Cralle’s estate. And Foushee in his answer insisted, that the plaintiffs were entitled only to such interest in that money, as they were entitled to in the slaves for which the money was received as an indemnity, namely, an estate for mrs. Blackwell’s life in her distributive portion thereof.

The circuit superior court of Northumberland, (to which the suit had been transferred,) in an interlocutory decree pronounced the 19th of October 1832, declared that the money received as an indemnity for the deported slaves was to be regarded as part of the goods and chattels, of the intestate generally, and not as part of his slave property, and decreed for the plaintiffs accordingly. From which decree Foushee appealed to this court.

Stanard, for the appellant,

contended, that • under the 1st article of the treaty of Ghent, and the conventions between the-United States and Great Britain which subsequently grew out of it,* the United States, at the period *of Cralle’s death, *325liad a right to demand on his behalf, and Great Britain was bound to restore, the specific *slaves of Cralle which had been deported; that the claim did not become a money demand until the convention of November 1826, after 'Cralle’s death ; and that the money received by his administrator was impressed with the same character as the property on account of which it was received. The character, he said, of property belonging to the estate of a decedent, and the respective rights of parties interested in it, are ascertained at the time of the decedent’s death. If the will directs land to be sold and the ¡money to be paid to a legatee, the failure to make the sale is immaterial: though the legatee die before the land has been actually converted into money, it nevertheless passes as money, to his personal representatives, not to his heirs. Tazewell & al. v. Smith’s adm’r, 1 Rand. 313, 320; Ashby v. Palmer, 1 Meriv. 296. On the other hand, an improper conversion of property belonging to the estate is equally ineffectual to change the rights of parties. If an administrator sell the slaves of his intestate, under the mistaken belief that such sale is necessary for the *payment of debts, the widow can claim no greater interest in the money than she would have been entitled to in the slaves. Godwin’s adm’r v. Godwin’s adm’x &c., 4Eeigh 410. Between that case and the present there is no distinction in principle.

This case may also be assimilated to an agreement between individuals, that the one will restore specific slaves to the other. [Allen, J. Would not the remedy be by action for damages?] The right to the specific slaves would not be the less because of such agreement.

Cooke, for the appellee.

The entire basis of mr. Stanard’s argument is taken away by the examination of the treaties and conventions which he himself has referred to. None of them provides for the restitution in specie of slaves in the situation in which these were at Cralle’s death, but only (at most) for indemnification to the owners. Indeed no british minister would have dared to make such a stipulation, knowing the theory of the law of England in respect to slavery on the english soil. The claims of american owners of deported slaves are recognized and treated, from first to last,_ as money claims, not as claims to specific property. The property in the slaves had been divested by the act of deportation jure belli. And even if the british government had expressly agreed to restore the slaves deported, such agreement would not have had the effect to revest the property; it would have been merely an executory contract of the british government to restore, and nowise equivalent to the actual restitution. The fund then was money de facto when it came to the hands of the administrator, and there was nothing in the transactions between the two governments which impressed on it the character of slave *326property. Indeed Cralle never had, under the treaties, a right to claim even pecuniary compensation for the loss of these slaves; though his administrator did obtain such compensation *by an equitable construction made by the american commissioners for distributing the fund which the british government had paid.

Cralle, therefore, having no property in these slaves at the time of his death, the cases cited on the other side are wholly inapplicable.

Leigh, in reply.

The dispute between the american and british governments as to the construction of the first article of the treaty of Ghent, related to slaves and other property on board the british vessels lying in our waters at the exchange of the ratifications of the treaty. Our government contended that Great Britain b3’ that article had stipulated not to carry awa3, but to make restitution of, all slaves and other property of american citizens which might be in that situation. Suppose the slaves then on board the british vessels had been, in conformity with that construction, actually landed on our coast, and relinquished by the british forces: there can be no doubt that the property would have remained in specie to the original owners. The construction maintained by the american government was the true construction of the article, and the slaves ought to have been so landed and relinquished. The award made by the emperor of Russia proceeds upon that construction: it declares that the United States are entitled to claim a just indemnification for all private property carried away by the british forces; not because the treaty bound Great Britain to' pay a pecuniary equivalent for such slaves and other property of american citizens as she should think proper to carry away, but because she bad thereby stipulated not to carry away any such property at all, but on the contrary to leave it with the american authorities, for the purpose of restoration to the owners. The appellee’s counsel interprets the word indemnification as importing a pecuniary equivalent only. This interpretation is too narrow. In the case of a lawless or unjust deportation of specific property, the *best and most perfect indemnification is always the restitution of the property itself. Besides, by the 6th article of the convention for carrying the award into execution, the sum awarded to each owner of slaves was to be paid to him “in lieu of his slaves,” and “on condition of such releasés or assignments to be given” as the commissioners should direct; that is, releases or assignments of the right to the slaves in specie. The owner retained the right to demand, and the british government the right to make, the restitution of the specific property if to be had: the alternative value was to be paid in money, if the property could not be restored in specie. Suppose Cralle had died having an unsatisfied judgment in detinue, for a slave or the alternative value: could it be contended that in the event the slave could not be had, the widow would be entitled to regard the right of the intestate as a right to a sum of money merely, and to claim an absolute property in her distributive share?

If the appellee’s counsel is correct in his idea that Cralle had no right even to pecuniary compensation for the loss of his slaves, then the administrator has received money’ to which the estate was not entitled, and the widow has no just claim to any part of it.

*

He had been counsel for the appellant.

*

“AU territory, places and possessions whatsoever, taken by either party from the other during the war, or which may be taken after the signing of this treaty, excepting only the islands hereinafter mentioned, shall be restored without delay, and without causing any destruction, or carrying-away any of the artillery or other public property originally captured in the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty, or any slaves or other private property.” Treaty of Ghent, art. 1. (1 Bioren’s LawU. S. p. *694.)*

“Whereas, under the first article of the treaty of Ghent, the United States claim for their citizens, and as their private property, the restitution of, or full compensation for, all slaves who, at the date of the exchange of the ratifications of the said treaty, were in any territory, places or possessions whatsoever, directed by the said treaty to be restored to the United States, but then still occupied by the british forces, whether such slaves were, at the date aforesaid, on shore, or on board any british vessel lying in waters within the territory or jurisdiction of the United States; and whereas differences have arisen whether, by the true intent and meaning of the aforesaid article of the treaty of Ghent, the United States are entitled to the restoration of, or full compensation for, all or any slaves as above described, the high contracting parties hereby agree to refer the said difference to some friendly sovereign or state, to be named for that purpose; and the high contracting parties further engage to consider the decision of such friendly sovereign or state to be final and conclusive on all the matters referred.” Convention, of *325London, October 20,1818, art. E. (Appendix to acts of 15th congress, 2d session, p. 82.)

"The United States of America are entitled to claim from Great Britain a just indemnification for all property which the british forces may have carried away: and as the question relates to slaves more especially, for all the slaves that the british forces may have carried away, from places and territories of which the treaty stipulates the restitution. in quitting these same places and territories. The United States are entitled to consider as having been so carried away, all such slaves as may have been transferred from the above mentioned territories to british vessels within the waters of the said territories, and who for this reason may not have been restored." Decision of the emperor of Russia. (Appendix to acts of 17th congress, 2d session. p. 1, 2.)

‘‘The decision of the two commissioners, or of the majority of the board, as constituted by the preceding article, shall in all cases be final and conclusive. whether as to number, the value, or the ownership of the slaves or other properly for which indemnification is to be made. And his britannic majesty engages to cause the sum awarded to each and every owner in lien of his slave or slaves or other property, to be paid in specie, without deduction, at such time or times and at such place or places as shall be awarded by the said commissioners, and on condition of such releases or assignments to be given, as they shall direct.” Convention of St. Petersburg!!. July 12, 1822, art. 6. (Same appendix, p. 9.)

"Difficulties having arisen in the execution of the convention concluded at St. .Petersburgh on the 13th day of July 1822, under the mediation of his majesty the emperor of all the Rnssias, between the United States of America and Great Britain, for the purpose of carrying into effect the decision of his imperial majesty upon the differences which had arisen between the said United States and Great Britain, on the true construction and meaning of the first article of the treaty of peace and amity concluded at Ghent on the 24th day of December 18U,—his majesty the king of the united kingdom of Great Britain and Ireland agrees to pay, and the United States of America agree to receive, for the use of the persons entitled to indemnification and compensation by virtue oí the said decision and convention, the sum of 1,204,960 dollars current money of the United States, in lieu of, and in lull and complete satisfaction for, all sums claimed or claimable from Great Britain by any person or persons, whatsoever under the said decision and convention. Both the final adjustment of those claims, and the distribution of the sum so paid by Great Britain to the United States, shall be made in such manner as the United States alone shall determine ; and the government of Great Britain shall have no further concern or liability therein.” Convention of London, November 13, 1846, art. 1, 4. (Appendix to acts of 19th congress, 2d session, p. 50, 57.)

An act of congress, approved March 2, 1837, (3 Story’s Laws U. S, p. 20Í8,) made provision for the adjustment of claims of persons entitled to indemnification under the 1st article of the treaty of Ghent, and for the distribution among such claimants of the sum paid by Great Britain under the convention of November 13, 1820, by a board of commissioners to be appointed for the purpose.— Note in Original Edition.

ACJW3N, J.

The first article of the ti’eaty of Ghent between the United States and Great Britain stipulated, for the restoration of all territory &c. taken by either parts’ from the other, without causing any destruction or carrying away any of the artillery or other public property, originally captured in said forts or places, which remained there upon the exchange of the ratifications of the treaty, or any slaves or other private property.

The two governments differed as to the true construction of this article; the american government insisting that it extended to all slaves within their territory at *the time, whether on land, or on board the british cruisers; the english government, that the article applied to such slaves as were on shore. The two governments, not being able to agree, made and concluded a convention on the 20th day of October 1818, by which they referred the difference to the decision of the emperor of Russia. In this convention it was recited that the United States claimed for their citizens, and as their private property, the restitution of, or full compensation for, all slaves which were embraced by their construction of the treaty as aforesaid.

On the 22d of April 1822, the emperor of Russia made his award, sustaining the construction given to the treaty by the american government: the words of the award being, that “the United States of America are entitled to claim from Great Britain a just indemnification for all private property which the british forces may have carried away, and as the question relates to slaves more especially, for all the slaves that the british forces may have carried away, from places and territories of which the treaty stipulates the restitution, in quitting these same places and territories;” and that “the United States are entitled to consider as having been so carried away, all such slaves as may have been transferred from the above mentioned territories to british vessels within the waters of the said territories, and who for this reason may not have been restored.” On the 12th of July 1822, a convention was executed to carry into effect this award. By the first article, commissioners were to be appointed to ascertain and determine the amount of indemnification which might be due to citizens of the United States under the award. The average value to be allowed for each slave for whom indemnification might be due, was to be fixed. The evidence in support of the *327claims for indemnification was to be examined and decided on. And after the commissioners should have decided, the british government engaged *to cause the sum awarded to each and every owner in lieu of his slaves, to be paid at the times and places awarded, and on condition of such releases or assignments to be given, as the commissioners should direct. Difficulties having arisen in the execution of this convention, on the 13th of November 1826 another convention was made, by which Great Britain agreed to pay and the United States to receive, for the use of the persons entitled to indemnification and compensation by virtue of the decision of the emperor of Russia and the subsequent convention, a specific sum in lieu of and in full and complete satisfaction for all sums claimed or claimable from Great Britain by any person under the said decision and convention. And the adjustment of the claims and distribution of the sum paid was to be made in such manner as the United States alone should determine. This ended the controversy between the two governments ; and on the 2d of March 1827 an act of congress passed, creating a commission to determine on the claims, and directing the distribution of the money.

Certain slaves, the property of the appellant’s intestate, had been carried away. He died in 1825, leaving a widow ; and after his death, his administrator preferred a claim and received a sum of money on account of these slaves. As the intestate died without issue, his widow claims, under our act of distributions, one half of the sum received as indemnity for the deported slaves, as her absolute property; and the administrator contends that she is entitled only to such interest in the money as she would have been entitled to in the slaves for which it was received, that is, an estate for life.

As Great Britain stipulated to restore the slaves and private property which remained in the places designated, it is unnecessary to enquire what would have been the effect of the capture upon the title of the first *owner. By the jus postliminii, if the property so captured had been restored, and had come again into the power and possession of the original owner, his title would not have been considered as divested by the capture. But the property in question was not restored; the possession of the original owner was never resumed; and it would not be contended that under the provisions of this treaty, he could have followed the property, and asserted his claim to it as against individuals into whose hands it had fallen. His claim was, through his government, upon the government of Great Britain, and not to the specific chattel wherever it might be found. To constitute a complete title to the thing, possession must have been acquired; and that not being resumed, the claim of the original owner was, through his government, upon the foreign government for indemnity. It therefore would seem to follow, that as soon as it was ascertained that the property was *not*or could not be reclaimed, that fact destroyed all title to the identical property. Whatever was afterwards received on account of it, was so received by way of indemnity and compensation for the loss. If the case stood therefore upon the treaty of Ghent alone, it seems to me that in the event which has happened, the money paid could not, as between these parties, be regarded as slaves. To liken it to the case of private individuals, here was an executory contract to restore property, the title to which, under the laws of war, was divested by the capture, and by the continued possession of the enemy. Under the treaty and by right of postliminy, if the possession had been restored, the original title would have been revested and have oyerreached the capture. But it was not so restored; the title never did revest, and the claim of the party was for compensation for the breach in not restoring.

But the subsequent -conventions between the governments would seem to remove all difficulty, as the owner ** could*claim only through the acts of his government. It had full authority to surrender his rights, or commute them, or accept such compensation for them as it thought proper. By the convention of 1818, the United States claimed for their citizens the restitution of, or full compensation for, all slaves carried away against the treaty as they construed it. This claim, thus stated in the alternative, was submitted to the arbitrator. He decided that they were entitled to indemnification from Great Britain for the slaves so carried away; and to render it perfectly certain for what this indemnity was to be paid, he further stated that they were entitled to consider as having been so carried away, all such slaves as might have been transferred &c. and who for this reason had not been restored; thereby shewing that after such carrying away, restitution could not be made, and therefore indemnification was given. The claim for restoration was submitted; the decision put an end to it by awarding indemnity, *and*is conclusive as to the title to the specific property.

After this award, restoration of the property is no more heard of. The convention of 1822, for carrying the award into effect, speaks of the indemnity alone, and fixes the mode by which the amount is to be ascertained and paid.

Some reliance was placed upon the clause in the treaty, by which the british government engaged to pay the sum awarded to the owner in lieu of his slaves, on condition of such releases and assignments to be given, as the commissioners should direct. I do not understand this as recognizing a right then subsisting to have the specific thing, (for that would be contradicting the words of the award and treaty), but simply as shewing that the *money*was paid as an indemnity for the specific propertjr for which compensation was awarded. And as to the releases or assignments, it is to be observed that, by the treaty, Great *328Britain was to pay to ':'each owner. The decision of the commissioners would furnish evidence of the claim; and it was necessary for her security that some authentic evidence of the payment should be furnished. This, it seems to me, was the object of this cause. Cralle died after the ratification of this treaty. Kis right then, as secured by his government, was a right to a pecuniary indemnity for his loss, and the subsequent treaty and law merely provided for the paj'ment, but did not vary the character of the subject. His administrator received it as a pecuniary compensation to which his intestate was entitled, and is bound to distribute it as other money of the estate.

I think the widow is entitled to claim the moiety as her absolute property, and that the decree should be affirmed.

BROOKE and BALDWIN, J., concurring, decree affirmed.