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Relations with Great Britain.
public notification thereof, in such manner as the To the documents before enumerated are added said Commissioners shall direct; and no evidence draughts of an explanatory article. and a letter shall be received on the part of the claimants after referring to it, prepared by the Attorney General, the said term, except in special cases, wherein the which, though not prescribed by way of instrucboard shall deem it just, or cause shown to pro- tion, yet, containing ideas proper to be known by long the said term. And the Commissioners shall you, the President has thought it expedient to also have power to limit, in each case, a time have forwarded. Definitive instructions will be within which the evidence shall in like manner committed to the care of Mr. Sitgreaves, who be exhibited on the part of the United States: proposes also to take with him copies of the laws Provided, That such term shall not be less than of different States, referred to as legal impedi
from the expiration of the time limited for ments, or the causes of them, reports of cases adthe exhibition of evidence on the part of the claim- judged in American courts, and some other docu
ments which he thinks will be useful in the course Of these articles, the following should be ulti- of your negotiation. Your full powers to conmately insisted upon :
clude an explanatory article are enclosed, and a The first.
list of all the papers herein before referred to. The second, except the third point of proof. It is expected that Mr. Sitgreaves may be ready
The third, unless an exception should be deem- to embark in two or three weeks, if a convenient ed proper in the case of judgments since 1789, on passage can within that time be obtained. the statute of limitations.
With perfect respect and esteem, I am, dear The fifth, except the words "might have been or.” | sir, &c., TIMOTHY PICKERING.
And the sixth, requiring the appointment of a new set of Commissioners. I have further to inform you that Mr. Sitgreaves
The Secretary of State to Mr. King. having, as one of the Commissioners, assiduously
DEPARTMENT OF State, Feb. 7, 1800. and thoroughly investigated the subject, and there Dear Sir: My letter of the 31st of December by acquired an accurate knowledge of every ques- expressed to you the ideas and conclusions of the tion to be discussed between you and the British President on the several subjects of negotiation Government, the President has thought it expe. relative to the execution of the sixth article of the dient that he should go to London to facilitate Treaty of Amity, Commerce, and Navigation, beyour researches, and render you every assistance tween the United States and Great Britain. It which his intimate acquaintance with the busi- was then expected that a further consideration of ness will enable him to give. It is also appre- the matter would have suggested and required adhended that you may derive much useful informa- ditional instructions; but the President is satistion from Mr. Sitgreaves relative to transactions fied to leave it on the basis at that time proposed. in the board, which the written documents either The additional documents, which Mr. Sirgreaves do not contain or will not suggest; and, finally, takes with him, will give you a more perfect that by this measure the conclusion of the nego- knowledge of the extent and nature of the claims, tiation may be expedited. For, although Mr. the equitable adjustment of which is the object Macdonald, Mr. Rich, and Mr. Guillemarde, in of the proposed negotiation; and, with views mutheir letter of the 14th of August to Mr. Fitzsim-tually upright, the President trusts it may soon be mons and Mr. Sitgreaves, as plainly as indeco- brought to an honorable conclusion. rously insinuate that the two latter seceded from But this letter cannot be closed without expressthe board for the purpose of delaying payments by ing to you the President's sense of the injury done the United States, you well know that nothing to the American Commissioners and Governcan be more unfounded than this imputation. The ment, by the suspicion which appears to have President is anxious to have the expected expla- been suggested to, if not entertained by, the Britnations speedily agreed on, that the business of ish administration, that the final secession of the the boards in London and Philadelphia may be American Commissioners from the board was resumed. There is not any branch of the Gov. caused or influenced by any considerations of inernment, nor, within my knowledge, an individual terest, either to individuals or the States, to arise officer, who would not view with disdain the in- by delaying awards and payments. Such a sussinuations above mentioned. But the disposition picion should be repelled with earnestness, and and opinions predominating with the Commis- even with disdain. I have the honor to be, &c. sioners from Great Britain are utterly incompati
TIMOTHY PICKERING ble with harmony in the proceedings, and, as we conceive, with justice and equity, in the adjustment of British claims. Besides, the personali
The Secretary of State to Mr. King. ties which have taken place belween ihe mem
DEPARTMENT OF STATE, Aug. 23, 1800. bers, rendering any further cordiality between Sır: Your letters stating your negotiations them hopeless, show the dissolution of ihe present with Lord Grenville respecting the differences board to be indispensable. Mr. Liston has been which have arisen in executing the sixth article informed that Mr. Sitgreaves was to go to Lon- of our Treaty of Amity, Commerce, and Navigadon because it was supposed that he would think tion with Great Britain, have been laid before, and it proper that Mr. Macdonald should repair thither considered by, the President. also; and doubtless he will speedily embark. He still retains the opinion that an amicable
Relations with Great Britain.
explanation of that article is greatly to be desired; Lord Grenville on this subject. Perhaps a change and, therefore, receives with much regret the in- of temper may be produced by a change of cirformation that the British Cabinet is indispos. cumstances; and there may be a state of things ed to enter on the discussion of this interesting in which you may perceive a disposition favorasubject.
ble to the accomplishment of an object which He perceives with concern, not entirely unmix- ought to be desired by both nations, because it is ed with other sensations, that the secession of the just in itself, and because it will remove a subject two Commissioners from the board lately sitting of controversy which may, in the course of events, in Philadelphia, has been attributed, not to its have a very unhappy influence on that good unreal cause, but to motives which in no instance derstanding and friendly intercourse, which it is have ever influenced the American Government. the interest of both to preserve.
That Government is, as it has ever been, sin The note of the 18th of April, addressed to you cerely desirous of executing, with perfectand scru- by Lord Grenville, stating the determination of pulous good faith, all its engagements with for the British Cabinet not to modify, but reject, eign nations. This desire has.contributed, not without discussion, the explanatory articles proinconsiderably, to the solicitude it now manifests posed by you on the part of the United States, for the explanatory articles you have been in- assumes, as the base of its decision, a principle structed to propose. The efforts of the American not only so different from those admitted by this Commissioners to proceed and decide on partic- Government, but so different from those recogular cases, instead of laying down abstract prin- nised by both nations in the Treaty of Amity negociples, believed to be untrue in themselves, ought tiated between them, and which ought, therefore. to have rescued their Government from suspicions to be adhered to in all explanations of that treaty, so very unworthy, and so little merited by the as to warrant a hope that the determination angeneral tenor of its conduct. The resolutions, nounced in that note may not be unalterable. maintained by a majority of the late Board of His Lordship assumes as a fact that the fourth Commissioners, are such as the Government of article of the Treaty of Peace not having been the United States can never submit to. They duly executed on the part of the United States are considered not as constructive of an existing the British Government withheld the delivery of treaty, but as imposing new and injurious burdens, the forts on the frontier of Canada, in order that unwarranted by compact, and to which, if in the these might serve as a pledge for the interests first instance plainly and intelligibly stated, this and rights secured to the British creditors under Government never could and never would have that article." assented.
But this is a fact which the American GovernThis opinion is not lightly taken up; it is a ment has ever controverted, and which has never deep and solemn conviction, produced by the most yet been established. mature and temperate consideration we are capa Without entering into the always unavailing ble of bestowing on the subject.
and now improper discussion of the question, This being the fixed judgment of the United which nation committed the first fault, it ought States, it is impossible not seriously to apprehend, never to be forgotten that the treaty in which the unless we could forget the past, that no attempt claim of the British creditors, on the United by arbitration to adjust the claims of individuals States, originated, was avowedly entered into for under the sixth article of the treaty, previous to the purpose of terminating the differences bean explanation of it by the two Governments, can tween the two nations “in such a manner as, be successful. A second effort at this adjustment, without reference to the merits of their respective by the proposed modification of the board, while complaints and pretensions, may be the best calthe principles heretofore contended for receive the culated to produce mutual satisfaction and good countenance of the British Government, would understanding." most probably, unless, indeed, the board should In questions growing out of such a treaty, again be dissolved, subject us to the painful alter- neither nation can be permitted to refer to and native of paying money which, in our best judg-decide the merits of those respective complaints ment, the Commissioners had no power to award, and pretensions, by asserting that the other, and or of submitting the public faith to imputations not itself, has committed the first fault. from which it could only be freed by a correct Lord Grenville then proceeds on the idea that and laborious investigation of the subject. In the Commissioners appointed by the American such a situation, presenting to us only such an al Government have withdrawn from the board, ternative, we are extremely unwilling to be placed. merely because awards were rendered against
It is, then, very seriously desired that the ex- their opinion, and on claims which they believed planations required by this Government should be to be unjust. made. They are believed to be so reasonable in But this idea is neither warranted by the conthemselves, and to be so unquestionably in the duct or declarations of the American Commisspirit, and to the full extent of the existing treaty, sioners, nor of the Goverament which appointed that it is hoped the difficulties, on the part of the them. It has been, and still is, expressly disaBritish Cabinet, may yet be removed.
vowed. The Commissioners and their GovernThe President, therefore, requests that you will ment acquiesced under opinions which they contake any proper occasion, should one in your judg- scientiously believed to be formed on erroneous ment present itself, to renew your application to principles, but on principles submitted by the
Relations with Great Britain.
treaty to their decision. Awards conforming to made or to be made on this Government, under such opicions, unless by mutual consent the sub- the sixth article of our Treaty of Amity, Comject shall assume some other form, will be paid merce, and Navigation, with His Britannic Majesby the United States. It was not until a major-ty, is deemed the most eligible remaining mode of ity of the board had proceeded to establish a sys- accommodating those differences which have imtem of rules for the government of their future peded the execution of that article. decisions, which, in the opinion of this Govern It is apparent that much difficulty will arise in ment, clearly comprehended a vast mass of cases agreeing on the sum which shall be received as never submitted to their consideration, that it was compensation. The ideas of the two Governdeemed necessary to terminate proceedings be- menis, on this subject, appear so different, that, lieved to be totally unauthorized, and which without reciprocal sacrifices of opinion, it is probwere conducted in terms and in a spirit only cal-able they will be as far from agreeing on the sum culated to destroy all harmony between the two which ought to be received, as on the merits of nations.
the claims for which it will be paid. This diffiWe understand the treaty differently from what culty is, perhaps, increased by the extravagant Lord Grenville would seem to understand it, when claims which the British creditors have been inhe says the decision of the board, constituted ac- duced to file. Among them are cases believed to cording to the provisions of that instrument, "was be so notoriously unfounded, that no Commissionexpressly declared to be in all cases final and ers, retaining the slightest degree of self-respect, conclusive.”
can establish them. There are many others where These terms have never been understood by us the debtors are as competent to pay as any inhabas authorizing the arbiters to go out of the special itants of the United States; and there are others cases described in the instrument creating and where the debt has been fairly and voluntarily limiting their powers. The words “all cases” compromised by agreement between creditor and can only mean those cases which the two nations debtor. There are even cases where the money have submitted to reference. These are described has been paid in specie, and receipts in full given. in the preceding part of the article, and this de- I do not mention these distinct classes as comprescription is relied on, by the United States, as hending all the classes of claims filed which can constituting a boundary, within which alone the never be allowed; but as examples of the materipowers of the Commissioners can be exercised. als which compose that enormons mass of imaThis boundary has, in our judgment, been so to- gined debt, which may, by its unexamined bulk, tally prostrated, that scarcely a trace of it remains. obstruct a just and equitable settlement of the The reasoning on which we have formed this well-founded claims which really exist. judgment it would be unnecessary to detail to you, The creditors are now proceeding, and, had they because you are in perfect possession of it. not been seduced into the opinion that the trouble
Believing the British Cabinet disposed to act and expense inseparable from the pursuit of old justly and honorably in a case in which we con- debts, might be avoided by one general resort to ceive their reputation, as well as ours, to be con- the United States, it is believed they would have cerned, we have been confident in the opinion, been still more rapidly proceeding in the collecthat to obtain their serious attention to the sub- tion of the very claims, so far as they are just, jects of difference between the two nations, was which have been filed with the Commissioners. to secure the establishment of that reasonable and They meet with no obstructions, either of law or liberal construction of the article for which Ame- fact, which are not common to every description rica has contended. We shall abandon this opin- of creditors, in every country, unless the difficulion with reluctance and regret.
ty, with respect to interest during the war, may Although the President decidedly prefers the be so denominated. Our judges are even liberal amicable explanations which have been suggested in their construction of the fourth article of the to any other mode of adjusting the differences Treaty of Peace, and are believed, in questions which have arisen in executing the sixth article growing out of that treaty, to have manifested no of our treaty
with Great Britain, yet it is by no sort of partiality for the debtors. Indeed, it is bemeans the only mode to which he is willing to re- lieved that, with the exception of the contested sort. He does not even require that you shall article of war, interest, and, possibly, of claims press this proposition in a manner which, in your barred by the act of limitations during the war, judgment,
may lessen the probability of settling the United States are justly chargeable with the existing differences, or further than may comport debts of only such of their citizens as have bewith the interests of the United States. Your come insolvent subsequent to the peace, and presituation, your full and near view of all the cir- vious to the establishment of the Federal courts. cumstances which can influence the negotiation, This opinion is founded on a conviction that our enable you to decide more certainly than can be judges give to the fourth article of the Treaty of done on this side of the Atlantic, on the precise Peace, a construction as extensive as ought to be course which it may be most advantageous to pur- given to it by Commissioners appointed under the sue. To your discretion, therefore, the President sixth article of the Treaty of Amity, Commerce, entirely submits this part of the subject.
and Navigation. If the explanatory articles so much desired by Those who have attended most to this subject, the United States be unattainable, the substitution are of opinion that the sum which might properly of a gross sum, in full compensation of all claims, I be awarded against the United States would fall
Relations with Great Britain.
short of any estimate which has probably been appear to him that the board here had authority made of it in England, or by the British creditors to allow interest for this portion of time. That or agents in this country. We are, however, sen- he made me this communication in hopes that we sible that Commissioners, acting within their might agree in the just interpretation of the pow. powers, may extend the sum further than justice ers of the Commissioners, as it would be disagree. or a fair construction of the article would extend able, particularly at the juncture of affairs when it; and we have been taught to apprehend a con- he was speaking, again to arrest the proceedings struction, of which, at the ratification of the trea- of the Commissioners. I replied that the subject ty, no fear was entertained. From this persua- was both unexpected and new, that it should re sion, and from a solicitude to perform what even ceive my immediate consideration, and that I rigid and unfavorable judges may suppose to be would take the earliest opportunity in my power enjoined by good faith, the interests of the United of conversing with him respecting it. States may require, and the President is, therefore, After maturely reflecting upon the objection willing, that the agreement should not be strictly which originated with and was entertained by limited by the sum for which, in our opinion, we Doctor Swabey before the conclusion of the conought to be liable. He will be satisfied with four vention, in virtue of which the board has resumed millions of dollars. He will not consent to ex- its proceedings, I informed Lord Hawkesbury ceed one million sterling.
that I was ready to meet him; but, owing to the If a gross sum, in satisfaction of all other claims, discussions going on with France, he has not yet be accepted, you will, of course, stipulate for the appointed a day to receive me. In the meantime, lowest possible sum, and for the most favorable the commission proceeds in examining and decidinstalments which may be attainable.
ing the cases before it, leaving open the ascertainShould it be found impossible to negotiate rea- ment of the amount of the respective claims. As sonable explanatory articles, or to agree on a sum
the first instalment of the six hundred thousand to be received as compensation for the claims of pounds sterling; to be received by Great Britain, the creditors, much doubt is entertained concern is payable in July, and as, from the nature of the ing the proposition for new-modelling the board, negotiations with France, I may not be able to as proposed by the British Minister. While the meet Lord Hawkesbury soon, it has appeared to Government itself professes to approve the con me proper to apprize you of this objection to the duct of the late Commissioners, much fear is en- powers of the Commissioners, which may be foltertained that their successors may bring with lowed up by a suspension of their proceedings. them those extravagant and totally inadmis With perfect respect and esteem, I have the sible opinions which have dissolved the past, and honor to be, sir, your obedient and faithful servant, will most probably dissolve any future board.' Be
RUFUS KING. fore the United States proceed to take a new step in a case where experience has done so much to teach them caution, some assurances of the tem
Mr. King to the Secretary of State. per in which the Commissioners to be appointed
LONDON, April 23, 1803. will meet ought to be received. And yet we are not satisfied that good faith does not require that,
SIR: In my No. 87, I mentioned the difficulty notwithstanding the past, we should consent to which had arisen respecting the proceedings of the make a second effort for the execution of the Commissionors under the seventh article of the sixth article of the treaty, in the forms it has treaty of 1794. Several conferences have since prescribed.
taken place between me and Lord Hawkesbury, On this part of the subject, however, the Pres- but the impediment is not yet removed. At my ident has come to no determination; so soon as
first meeting with Lord Hawkesbury, after the his decision shall have been made, it shall be com- communication he had made to me on this submunicated to you. With very much respect, &c. ject, I stated to him the arguments that, in my
J. MARSHALL. opinion, ought to remove the objection which had
been raised; and I was in hopes that, on a further
conversation between his Lordship and Dr. SwaNo. 87.
bey, the objection would have been given up. Mr. King to the Secretary of State.
Some days afterwards, the under Secretary, Mr.
Hammond, on the part of his Lordship, proposed LONDON, March 25, 1803.
to me, as a compromise, that three per cent. in. Sir: It is now nearly a fortnight since Lord stead of six per cent. interest should be allowed Hawkesbury informed me that he had lately as- upon the whole of the claims during the suspencertained that the American Commissioners, un- sion of the commission. In my last conference, I der the seventh article of the Treaty of Amity. informed Lord Hawkesbury that I could not conand Commerce, with the concurrence of the fifth sent to the proposed compromise, seeing no just Commissioner, conceived themselves authorized principle upon which I could do so. He desired to allow interest upon the claims before them for me, however, to confer with the Lord Chancellor the time during which the proceedings of the upon the subject; which I shall do to-morrow, or board had been suspended. That, as this suspen- the day after. If the objection be persisted in, sion had taken place, in consequence of the sus- the British Commissioners will be instructed not pension of the commission in America, it did not to sign the awards unless the interest, in whole or
Relations with Great Britain.
in part, during the suspension of the commission. J. Marshall, Secretary of State, to Samuel Sitgreaves, be omitted. In this case, the Commissioners will
Esquire, London, dated enter their protest against this instruction ; and,
DEPARTMENT OF STATE, Dec. 2, 1800. from a conversation I have had with the fifth Dear Sir: I have had the pleasure of receivCommissioner, I perceive it to be his opinion that ing your letters of the 29th of September, and the awards should then be made, although lessen- among them that of the 23d, enclosing a copy of ed in their amount, by a total or partial deduction your letter of the 22d of April, the original of of the interest during the suspension of the com- which had unfortunately miscarried. mission. This course, in his opinion, will avoid It is probable that, before this can reach you, the delay and uncertainty of ‘a negotiation be the negotiation respecting the sixth article of our tween the two Governments respecting the in- Treaty of Amity, Commerce, and Navigation struction that may be given to the British Com- with Great Britain will have terminated, and that missioners, and, moreover, secure to the claimants Mr. King will have come to some agreement with their compensation, except so much thereof as Lord Grenville, or will be able to state precisely may be withheld by insiruction of the British the ultimata of the British Cabinet on this subject. Government, which' may become the subject of Should it, contrary to our expectation, remain future demand and negotiation.
open, the President is of opinion that informal exAs I understand the objection, on the side of planations may be received in lieu of articles rethe British Commissioners, it is founded on the quired, provided sufficient assurances accompany allegation that the treaty of 1794 did not foresee them that the Commissioners, on the part of his the suspension of the commission that has taken Britannic Majesty, will, in the truespir it of conplace; that the convention has not provided for ciliation, conform to those explanations. it, and therefore, it is to be regarded as casus omis The idea suggested to Lord Grenville by Mr.
Our answer is, the treaty of 1794 sufficiently King, of sending over confidential characters to described the cases, or, in other words, creates the the United States, with power to make arrangecompetence or jurisdiction of the board; and, ments for facilitating the just and impartial exemoreover, lays down the rule by which they are cution of the treaty, and with an eventual appointto ascertain the full and complete compensation ment as Commissioners, is a valuable one. If no to be given to the claimants. The convention, positive agreement can be made which will enasubsequent to the suspension of the Commission: I ble us to enter again on the execution of the sixth ers, reassembles them, and authorizes them to pro- article without submitting to injurious and disceed in all respects, (except one, which is irrela- graceful imposition, this idea may, perhaps, be so tive to the point in discussion,) as is provided by improved as to become the foundation of a reathe treaty : it therefore authorizes them, posterior sonable accommodation. It is certainly recomto and including the time of their suspension, to mended by the probabilities you have suggested. examine and decide, and to grant full and com
If the system of informal explanation should be plete compensation in all cases submitted to their adopted, and a new board be constituted, in the decision by the treaty of 1794.
mode intimated by Lord Grenville, there will unThis reply has appeared to me so solid, that I doubtedly be considerable difficulty in agreeing on have been willing to believe the Cabinet would feel rules which shall guide its proceedings, and in obits force: and, therefore, although a moderate inter- taining security that these rules will not be deest is better than none, I have thought it my duty parted from. The explanatory articles which, beto reject the overture for a compromise, in confi- fore your departure, were digested by this Govdence that the British Commissioners would either ernment, and committed to you, are believed to be instructed to waive the objection, and consent be a liberal as well as just construction, and to the entire interest ; or, at worst, that they would would be, therefore, with reluctance receded from; be authorized to proceed on condition that'a moje- indeed, there are among them some from which ty only of the interest should be allowed. With we never ought to recede. Such, for example, as perfect respect and esteem, I have the honor to be, that, to charge the United States, the British cresir, &c.,
RUFUS KING. ditor must bring his case completely within the
treaty, and not require that the United States Extract of a letter from Mr. King to the Secretary of from every claim which may be at present, or, on
should furnish evidence to discharge themselves
the signature of the Treaty of Amity, may have "LONDON, April 30, 1803.
been unpaid. Such a construction appears to us “Sır: The objection of the British Commis- so totally unreasonable, that we should never have sioners
, under the seventh article of our treaty of deemed it necessary to guard against it, had not 1794, has been given up: and the board having the principle been already asserted, and it is of to-day completed a number of awards, including course a construction to which we never can and interest, during its late suspension, there is reason never ought to submit. Other principles were into believe that no further difficulty is likely to oc- sisted on which seem to us not less objectionable. cur in the satisfactory conclusion of the business But if it shall be found that a new board is to be of this commission. With perfect respect and resorted to, it will become necessary to revise the esteem, I bave the honor to be, sir, your obedient instructions which have been given, and to modi,
fy them so far as a proper respect for justice and RUFUS KING.” our own character will permit.
and faithful servant,