2. SEC. 1 The equity of this provision renders any observation in its support unnecessary.

SEC. 2. The creation or continuance of a lawful impediment may be considered as evidence that some of the debtors residing within its operation were solvent; but it would be not only illogical, but contrary to notorious facts, to consider it as prima facie evidence even that every such debtor was solvent. From the purport of the engagement of the United States, the creditor should therefore be held to prove, in every case, that the debtor was solvent at the conclusion of the peace, inasmuch as he cannot have sustained a loss by reason of the operation of a lawful impediment, unless the debtor was solvent at the peace, and became insolvent during the operation of such impediment.

SEC. 3. It seems due to equity, and is moreover required, in the ordinary administration of justice, that the creditor, to charge the provisional guarantee of his debtor, should prove that reasonable diligence had been used to obtain payment of the debtor; the omission whereof, in legal estimation, amounts to wilful negligence: and common and daily practice on this subject shows that the creditor must prove that he endeavored to recover of his debtor before he can resort to his guarantee.

SEC. 4. Unless a lawful impediment existed, no loss can have proceeded from it, and, consequently, no claim can be sustained against the United States. The impediment must, therefore, in every case, be proved by the creditor.

SEC. 5. The creditor must also prove that he sustained a loss by the operation of a lawful impediment, for which he could not, at the conclusion of the Treaty of Amity, obtain compensation in the ordinary course of judicial proceedings; and this can only be done by proving that the debtor became insolvent during the operation of the lawful impediment, and that he remained so at the conclusion of the treaty for, if he bebecame insolvent after the lawful impediment ceased, the loss cannot have proceeded from the impediment; and if he was solvent at the conclusion of the treaty, the debt might have been recovered in the ordinary course of judicial proceedings.

3. It does not occur that any other acts can be considered as lawful impediments. The law of nations requires that foreigners proceed to the tribunal in the last resort before they complain of a denial of justice; and no nation considers a complaint against the justice of its Judiciary as regular, or entitled to examination, unless the complainant has obtained the sentence of the highest tribunal established for the decision of his case.

It is for losses arising from the operation of lawful impediments that the sixth article provides. Losses proceeding from the acts of the parties are distinct from those which have arisen from the operation of law, and cannot, therefore,

tarily and actually subject to the laws of the States, respectively, or who shall, since the peace, have become a citizen of the United States, or have declared his intention to become a citizen, agreeably to the provisions of the acts of Congress. 2. A claimant, possessing the character before defined, shall be held to prove to the satisfaction of the Board of Commissioners:

1st. That the debt was bona fide contracted before the peace, and due and unpaid to the creditor at the exhibition of claim. Accounts shall be stated, with the date and amount of each item, and the claimant shall, in every instance, make oath, or affirmation, that all the credits are disclosed to which the debtor is believed to be entitled.

2d. That the debtor was solvent at the peace, and for such a reasonable time afterwards, within which the debt might have been recovered by judicial process, if lawful impediments had not been interposed.

3d. That the creditor used reasonable diligence to obtain payment from his debtor, although the prosecuting of suits is not to be deemed necessary evidence of such diligence.

4th. That some lawful impediments, affecting the claimant's demand, did exist to delay or prevent his recovery, or to impair or diminish his security.

5th. That, by the operation of such lawful impediments, he has sustained a loss or damage which cannot, at the time of the exhibition of the claim, be repaired in the ordinary course of judicial proceedings; and to this end he shall prove, either that the debtor became insolvent during such operation of lawful impediment, or during such reasonable time thereafter, within which the debt might otherwise have been recovered, and is yet insolvent; or that the ereditor is barred, in whole or in part, by a judicial decision had against him, in the particular case, during such operation of lawful impediment, and on the principles thereof.

3. Lawful impediments shall be deemed to include Legislative acts passed during the war, and judicially determined by the superior courts of the respective States to remain in force after the peace. Legislative acts, passed after the peace, and also judicial decisions of the superior courts of the respective States, by the operation whereof creditors of the description in the first section, were prevented or delayed from recovering the full value, in sterling money, of debts bona fide contracted before the peace. But the act, consent, acquittance, or release of the creditor, or his authorized agent, or lawful representative, shall, in all cases, be held to be conclusive upon him, and

be deemed to be within the provisions of the article. If lawful impediments existed in some parts of the United States, they existed in opposition to the repeated efforts of Congress to remove them, and their continuance must be ascribed to the imperfection of our first system of national Government and Union. This remark is not made with a view to infer, from this defect of our first Constitution, an exemption from a full and complete compensation for all losses that may have been sustained in consequence of even an unavoidable delay in the performance of our engagements. It is the inclination of the United States, exclusive of the stipulations of the Treaty of Amity, to compensate all such losses, according to the spirit of those stipulations. But we perceive no obligation that requires of us to allow (on the contrary, the most weighty considerations forbid us to admit) that any delay in the execution of the Treaty of Peace continued a single moment after the period when, by a reform, and, so far as respects this point, a complete correction of our Constitution, we put an end to and entirely removed the impediments which are alleged to have stood in the way of the full and complete execution of our previous stipulations. The Judiciary of the United States was established on the 24th of September, 1789, since when, whatever may have been the case before, no lawful impediment has existed in any part of the United States to the recovery of debts due before the peace to creditors of the side of Great Britain.

4. The creditor may reasonably expect the assistance of the same laws and process that existed when his debt was contracted. He ought to be contented with the remedy on which he depended when he gave the credit, and he has no claim in this respect for anything further.

5. If the creditor receives his whole debt, he is satisfied; and whether it is paid by the debtor or by the United States, or partly by one, and partly by the other, must be indifferent to him. The courts may, in particular instances, give the principal, and, on the circumstances of the case, refuse interest; the Commissioners may think both are due; in such instances, the principal should be received of the debtor, and the interest of the United States, and so in other supposable cases. This course agrees with the unanimous interpretation of, and practice under, the seventh article of the treaty. The simple restitution of property captured under the orders of November, 1793, is decreed by the court of appeals in prize cases, without interest, damages, or costs, and the amount of such simple restitution is received from the captor, the difference between which sum and the just demand of the claimant is awarded by the Commissioners, and paid out of the British treasury.

6. After what has passed, no reasonable expectation can be entertained of a satisfactory exe

no lawful impediment shall be deemed to have continued after the 24th day of September, 1789: Provided always, That the consent of the creditor shall not be implied to any judgment rendered against him in an adversary suit: And provided also, That all claims for interest, or balances of interest, shall be left to the decision of the Commissioners, except in cases adjusted between the debtor and creditor, or their lawful agents or representatives, respectively.

4. The various modes of execution for the satisfaction of judgments which were in use before the war, in the States respectively, and all proceedings in the established courts, whether of law or equity, for the discovery of fraud, and the recovery of the property of debtors, real or personal, in the hands or possession of fraudulent assignees, shall be deemed and held to be in the ordinary course of judicial proceedings within the meaning of the said sixth article of the Treaty of Amity.

5. The United States shall be deemed bound by the said article to make compensation only for the loss or damage occasioned by the lawful impediments, and actually sustained by the creditor; and, therefore, in cases where a part of the debt, whether of principal or interest, [might have been or] may yet be recovered, compensation may not be awarded for such part.

6. And, for the purpose of facilitating the due execution of the said sixth article of the Treaty

cution of the sixth article of the Treaty of Amity by the present Commissioners.

Whoever reads their correspondence, or the minutes of their proceedings, whatever may be his opinion of their respective merits, must agree in this conclusion. The appointment of other Commissioners appears, therefore, to be indispensable; and that they may not succeed to the controversy, in succeeding to the duties of their predecessors, the proposed provision, with respect to the decision of the present Board of Commissioners, seems equally necessary.

of Amity, according to the true intent and meaning thereof, as herein explained, it is further agreed, that the present Board of Commissioners for carrying into effect the said sixth article of the Treaty of Amity, &c., shall be dissolved, from the date of the final ratification of these presents. and, instead thereof, another board shall be constituted, to consist of five Commissioners, two of whom shall be appointed by His Britannic Majesty, and two by the President of the United States, by and with the advice and consent of the Senate thereof; and the fifth Commissioner (who shall be so named and designated) shall be appointed by His Britannic Majesty. And the said five Commissioners shall, before they proceed to act, respectively take the following oath or affirmation, in the presence of each other, which oath or affirmation, being so taken and duly attested, shall be entered on the record of their proceedings, viz: "I, A B, one of the Commissioners appointed in pursuance of the explanatory articles of the Treaty of Amity, Commerce, and Navigation, between His Britannic Majesty and the United States of America, do solemnly swear, (or affirm,) that I will honestly, diligently, impartially, and carefully examine, and, to the best of my judgment, according to justice and equity, decide all such complaints as have been preferred to the Commissioners heretofore appointed under the said sixth article of the said Treaty of Amity, Commerce, and Navigation; and that I will forbear to act as a Commissioner in any case in which I may be personally interested."

Three of the said Commissioners shall constitute a board, and shall have power to do any act appertaining to the commission: Provided, That one of the Commissioners named on each side, and the fifth Commissioner, shall be present; and all decisions shall be made by a majority of the voices of the Commissioners then present.

The said Commissioners shall first meet at Philadelphia; but they shall have power to adjourn from place to place, as they shall see cause. All claims preferred to the board heretofore appointed, and not dismissed by the said board, shall be considered as depending before the Commissioners to be appointed in virtue hereof. But the Commissioners appointed in virtue of this article shall not be bound by any acts or resolutions passed, or proposed to be passed, in the former board, in any cases not dismissed by the said former board.

The said Commissioners, in examining the complaints so as aforesaid preferred, are empowered and required, according to the true intent and meaning of the said sixth article of the Treaty of Amity, &c., and of these explanatory articles, to take into their consideration all claims, whether of principal or interest, and to determine the same respectively, according to the merits of the several cases, due regard being had to all the circumstances thereof, and as equity and justice shall appear to them to require; and shall have the same powers in regard to the examination of parties and witnesses, and the reception of evidence, as by the said sixth article of the treaty were given to the Commissioners heretofore appointed in pursuance thereof; and the awards of the said

the claimant; which payment the respective Governments undertook to make in consequence of such award.

Two Commissioners being named to each commission by the respective Governments, the choice of a fifth Commissioner to each was decided by lot, and it happened that, in constituting the commission for losses by capture or condemnation, the lot fell on a citizen of the United States, while in that by which the claims of the British creditors were to be decided, the lot fell on a subject of His Majesty. In the course of their proceedings, the majorities of both commissions formed their decisions on principles adverse to the opinions of the Government against which the claims were preferred. The awards of the commission under the seventh article have, nevertheless, been faithfully executed by the British Government. The temporary difficulties which arose in the execution of that commission led immediately to amicable explanation between His Majesty's Government and the Minister of the United States, in pursuance of which some regulations adapted to one class of cases were proposed to the Commissioners with a view to conciliation. In consequence of this proposal, a variation took place in the order and time of proceeding on those cases, but no change was made in the principles adopted by the majority as the ground of their awards; and considerable sums have actually been paid to American claimants in cases where the award of the Commissioners has rested on doctrines which are decidedly held to be erroneous, and which would not, therefore, have been recognised in any transaction with a foreign State. In America, a contrary course has been pursued. The two Commissioners nominated on the part of the United States to the commission under the sixth article, have finally claimed the right to invalidate, by their dissent, both the principles and the effect of the decisions of the majority, and have at length, by completely with drawing from the board, endeavored, as far as in them lay, to arrest all its proceedings.

In this state of things, the question of good faith and reciprocal execution of treaty can admit of no doubt.

Under the commission for losses by capture, a majority, consisting of three American Commissioners, acting upon their oaths, has admitted American claims, and has rejected British, in contradiction to the opinions of the two British Commissioners, and of the British Government. In all these decisions, the British Government has acquiesced. Under the commission for debts, a majority, consisting of three British Commissioners, acting also upon their oaths, has sanctioned British claims, and rejected American defences, in contradiction to the opinions both of the two American Commissioners and of the Government of the United States. On what ground of justice or good faith can the United States hesitate to abide by the arbitration to which they have agreed; or deny to the British subject the benefit of the same principle, the benefits of which have been already received by their own citizens?

It was neither required, nor even imagined, that the opinions of either commission could be unanimous on points on which the two Governments had found it impossible to agree. In both of them possible differences of opinion were foreseen, and they were provided for in both by the stipulation which gave full force and validity to the acts of the majority.

The secession of the two American Commissioners can afford no ground to their Government for declining to execute its solemn engagements. If those gentlemen have chosen to relinquish the duty which they undertook, this case is also provided for by the stipulation of the treaty, the eighth article of which contains a stipulation directly applicable to these very circumstances, and expressly points out in what manner the places of Commissioners absenting themselves are to be supplied.

Nothing, therefore, can of right remain to be done on this subject, but that the Government of the United States should supply the means of executing its own engagements by nominating (as the treaty prescribes) two fresh Commissioners to act with the remaining three, and by instructing them to repair by their diligence the injurious loss which the British creditors have already sustained by the long delay which the conduct of their predecessors has occasioned.

To attempt, instead of this, to enter into a new discussion on the merits of the particular decisions of either commission, would be to abrogate the present treaty, and to transfer the questions back again to negotiation between the same parties, who, from their past experience of the impossibility of coming to a satisfactory conclusion upon them, have long since mutually agreed to submit to an arbitration.

This objection applies not only to all retrospective examination of the particular cases already decided, but also with equal force to any such prospective explanations as may tend to prejudice, by a positive stipulation, the judgment of the sworn Commissioners respecting any of the points on which the claimants and defendants are at issue.

The injustice of such a revision might, perhaps, be thought more palpable and striking in those cases where, by the award of the sworn arbitrators, a new ground of right has actually accrued to the claimant. But it would be no less unjust in principle to deprive the other creditors, whose cases are yet undecided, of their share in the benefit of the treaty, to take from them, by an ex post facto agreement, the advantages of that full discretion which the treaty has already vested in the Cammissioners.

This view of the case must preclude any detailed discussion of the principles adopted by either commission; or of such explanatory rules as might be proposed on either side, to limit their future discretion, or to revise their past judgments.

Nor is there any ground to hope that such discussions, even if they were not liable to the strong objections already stated, would lead to any satisfactory conclusion between the two Governments. The points in question are for the most part those