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Relations with Great Britain.
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. Sec. 1 The equity of this provision renders 2. A claimant, possessing the character before any observation in its support unnecessary.
defined, shall be held to prove to the satisfaction Sec. 2. The creation or continuance of a law- of the Board of Commissioners: ful impediment may be considered as evidence 1st. That the debt was bona fide contracted bethat some of the debtors residing within its oper- fore the peace, and due and unpaid to the creditor ation were solvent; but it would be not only illo. at the exbibition of claim. Accounts shall be gical, but contrary to notorious facts, to consider stated, with the date and amount of each item, it as prima facie evidence even that every such and the claimant shall, in every instance, make debtor was solvent. From the purport of the en- oath, or affirmation, that all the credits are disgagement of the United States, the creditor should closed to which the debtor is believed to be entherefore be held to prove, in every case, that the titled. debtor was solvent at the conclusion of the peace,
2d. That the debtor was solvent at the peace, inasmuch as he cannot have sustained a loss by and for such a reasonable time afterwards, within reason of the operation of a lawful impediment, which the debt might have been recovered by unless the debtor was solvent at the peace, and judicial process, if lawful impediments had not became insolvent during the operation of such been interposed. impediment.
3d. That the creditor used reasonable diligence Sec. 3. It seems due to equity, and is moreover to obtain payment from his debtor, although the required, in the ordinary administration of justice, prosecuting of suits is not to be deemed necessary that the creditor, to charge the provisional guar- evidence of such diligence. antee of his debtor, should prove that reasonable 4th. That some lawful impediments, affecting the diligence had been used to obtain payment of the claimant's demand, did exist to delay or prevent debior; the omission whereof, in legal estimation, his recovery, or to impair or diminish his security. amounts to wilful negligence : and common and 5th. That, by the operation of such lawful imdaily practice on this subject shows that the cred- pediments, he has sustained a loss or damage itor must prove that he endeavored to recover of which cannot, at the time of the exhibition of the his debtor before he can resort tc his guarantee. claim, be repaired in the ordinary course of judi
Sec. 4. Unless a lawful impediment existed, no cial proceedings; and to this end he shall prove, loss can have proceeded from it, and, consequent- either that the debtor became insolvent during ly, no claim can be sustained against the United such operation of lawful impediment, or during States. The impediment must, therefore, in every such reasonable time thereafter, within which the case, be proved by the creditor.
debt might otherwise have been recovered, and is Sec. 5. The creditor must also prove that he yet insolvent; or that the ereditor is barred, in sustained a loss by the operation of a lawful im- whole or in part, by a judicial decision had against pediment, for which he could not, at the conclu- him, in the particular case, during such operation sion of the Treaty of Amity, obtain compensa- of lawful impediment, and on the principles tion in the ordinary course of judicial proceed- thereof. ings; 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 3. Lawful impediments shall be deemed to inconsidered as lawful impediments. The law of clude Legislative acts passed during the war, and nations requires that foreigners proceed to the tri- judicially determined by the superior courts of the bunal in the last resort before they complain of a respective States to remain in force after the denial of justice; and no nation considers à com- peace. Legislative acts, passed after the peace, plaint against the justice of its Judiciary as regu- and also judicial decisions of the superior courts lar, or entitled to examination, unless the com- of the respective States, by the operation whereof plainant has obtained the sentence of the highest creditors of the description in the first section, tribunal established for the decision of his case. were prevented or delayed from recovering the
It is for losses arising from the operation of full value, in sterling money, of debts bona fide lawful impediments that the sixth article pro- contracted before the peace. But the act, consent, vides. Losses proceeding from the acts of the acquittance, or release of the creditor, or his auparties are distinct from those which have arisen thorized agent, or lawful representative, shall, in from the operation of law, and cannot, therefore, all cases, be held to be conclusive upon him, and
Relations with Great Britain.
be deemed to be within the provisions of the arti- no lawful impediment shall be deemed to have cle. If lawful impediments existed in some parts continued after the 24th day of September, 1789: of the United States, they existed in opposition Provided always, That the consent of the creditor to the repeated efforts of Congress to remove them, shall not be implied to any judgment rendered and their continuance must be ascribed to the im- against him in an adversary suit: And provided perfection of our first system of national Govern- also, That all claims for interest, or balances of inment and Union. This remark is not made with terest, shall be left to the decision of the Commisa view to infer, from this defect of our first Con- sioners, except in cases adjusted between the stitution, an exemption from a full and complete debtor and creditor, or their lawful agents or repcompensation for all losses that may have been resentatives, respectively. 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 Uniied 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 as- 4. The various modes of execution for the satsistance of the same laws and process that ex- isfaction of judgments which were in use before isted when his debt was contracted. He ought to the war, in the States respectively, and all probe contented with the remedy on which he de- ceedings in the established courts, whether of law pended when he gave the credit, and he has no or equity, for the discovery of fraud, and the reclaim in this respect for anything further. covery of the property of debtors, real or perso
nal, 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. If the creditor receives his whole debt, he is 5. The United States shall be deemed bound satisfied ; and whether it is paid by the debtor or by the said article to make compensation only for by the United States, or partly by one, and partly the loss or damage occasioned by the lawful imby the other, must be indifferent to him. The pediments, and actually sustained by the creditor ; courts may, in particular instances, give the prin- and, therefore, in cases where a part of the debt, cipal, and, on the circumstances of the case, re- whether of principal or interest, [might have been fuse interest; the Commissioners may think both or] may yet be recovered, compensation may not are due; in such instances, the principal should be awarded for such part. 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 ex- 6. And, for the purpose of facilitating the due pectation can be entertained of a satisfactory exe- execution of the said sixth article of the Treaty
Relations wilh Great Britain.
cution of the sixth article of the Treaty of Amity of Amnity, according to the true intent and measby the present Commissioners.
ing thereof, as herein explained, it is further Whoever reads their correspondence, or the agreed, that the present Board of Commissioner minutes of their proceedings, whatever may be for carrying into effect the said sixth article of his opinion of their respective merits, must agree the Treaty of Amity. &c., shall be dissolved, from in this conclusion. The appointment of other the date of the final ratification of these presents Commissioners appears, therefore, to be indis- and, instead thereof, another board shall be cospensable ; and that they may not succeed to the stituted, to consist of five Commissioners, two of controversy, in succeeding to the duties of their whom shall be appointed by His Britannic Majespredecessors, the proposed provision, with respect ty, and two by the President of the United States, to the decision of the present Board of Commis- by and with the advice and consent of the Senate sioners, seems equally necessary.
thereof; and the fifth Commissioner (who shall be so named and designated) shall be appointed by His Britannic Majesty. And the said fire Commissioners shall, before they proceed to act. respectively take the following oath or affirma. tion, 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, riz: “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 ihat 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 firsi 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 buard, 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 par. ties 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
Relations with Great Britain.
Commissioners shall be final and conclusive in like manner, and shall in like manner be paid and satisfied, and on the like considerations, in all respects, as by the said sixth article of the Treaty of Amity, &c., has been directed and agreed.
The said Commissioners shall be respectively paid in such manner as has been agreed between the two parties, conformably to the eighth article of the said Treaty of Amity, &c.; and all other expenses of the said Commissioners shall be in like manner borne and defrayed.
In case of death, sickness, or necessary absence of the fifth Commissioner, his place shall be supplied in the manner directed by the sixth article of the said Treaty of Amity, &c., for the appointment of the fifth Commissioner; and in case of the death, sickness, or necessary absence of either of the other four Commissioners, the place of every such Commissioner shall be respectively supplied in the same manner as such Commissioner was first appointed ; and the new Commissioners shall take the same oath or affirmation, and do the same
duties. 7. It is proper that there should be a convenient 7. The evidence in support of the claims which limitation of the time within which each side have been preferred as aforesaid, shall be exhibited should produce their proofs. The article leaves by the claimants, respectively, within from the Commissioners a discretion to prolong the the first meeting of the said board, and public time in particular cases.
notification thereof, in such manner as the said Commissioners shall direct; and no evidence shall be received on the part of the claimants, after the said term, except in special cases wherein the board shall deem it jusi, on cause shown, to prolong the said term. And the Commissioners shall also have power to limit, in each case, a time within which the evidence shall, in like manner, be exhibited, on the part of the United States: Provided, That such term shall not be less than
from the expiration of the time limited for
the exhibition of evidence on the part of the LONDON, Feb. 18, 1800.
Lord Grenville to Mr. King.
new treaty, as affording that security which had
before been looked to from the possession of a DOWNING STREET, April 19, 1800. valuable pledge. The fourth article of the Treaty of Peace not. Those new stipulations, in so far as they rehaving heen duly executed on the part of the garded the matter of the debts, were formed with United States, the British Government withheld ihe view of meeting and providing for the diffithe delivery of the forts on the frontier of Canada, culty which arose from the great difference of in order that these might serve as a pledge for the opinion between the two Governments on some interests and rights secured to the British credi- of the leading principles affecting the executio tors under that article.
of the fourth article of the Treaty of Peace. For Matters were in this situation when Mr. Jay the final settlement of the claims of the British arrived in England, charged with a mission of a creditors under that article, as well as of other conciliatory tendency; and authorized finally to claims respecting which similar differences of settle these, as well as all other grounds of dissen- opinion subsisted, and which could not, therefore, sion between the two Governments.
satisfactorily be adjusted by any detailed agreeDesirous of meeting, by a corresponding con- ment between the two parties, it was stipulated duct, the disposition which Mr. Jay's mission an- that two Commissioners should be appointed, nounced, and satisfied with the spirit in which with full power to examine and to decide ; and he executed that commission, the British Govern- their decision, upon oath, or that of any three of ment, in the course of negotiation, consented to them, forming a board, according to the provisions an article for the immediate surrender of the of the treaty, was expressly declared to be, in all forts, and agreed to consider the good faith of the cases, final and conclusive, both as to the justice United States, and the express stipulations of a ' of the claim and as to the amount to be paid to
Relations with Great Britain.
the claimant; which payment the respective Gov- It was neither required, nor even imagined, thai ernments undertook to make in consequence of the opinions of either commission could be unanisuch award.
mous on points on which the two Governments Two Commissioners being named to each bad found it impossible to agree. In both of them commission by the respective Governments, the possible differences of opinion were foreseen, and choice of a fifth Commissioner to each was de- they were provided for in both by the stipulation cided by lot, and it happened that, in constituting which gave full force and validity to the acts of the commission for losses by capture or condem- the majority. nation, the lot fell on a citizen of the United The secession of the two American CommisStates, while in that by which the claims of the sioners can afford po ground to their Government British creditors were to be decided, the lot fell for declining to execute its solemn engagements. on a subject of His Majesty. In the course of If those gentlemen have chosen to relinquish the their proceedings, the majorities of both commis- duty which they undertook, this case is also prosions formed their decisions on principles adverse vided for by the stipulation of the treaty, the to the opinions of the Government against which eighth article of which contains a stipulation dithe claims were preferred. The awards of the rectly applicable to these very circumstances, and commission under the seventh article have, never- expressly points out in what manner the places of theless, been faithfully executed by the British Commissioners absenting themselves are to be Government. The temporary difficulties which supplied. arose in the execution of that commission led im- Nothing, therefore, can of right remain to be mediately to amicable explanation between His done on this subject, but that the Government of Majesty's Government and the Minister of the the United States should supply the means of exUnited States, in pursuance of which some regu- ecuting its own engagements by nominating (as lations adapted to one class of cases were proposed the treaty prescribes) iwo fresh Commissioners to the Commissioners with a view to conciliation. to act with the remaining three, and by instructIn consequence of this proposal, a variation took ing them to repair by their diligence the injurious place in the order and time of proceeding on those loss which the British creditors have already suscases, but no change was made in the principles tained by the long delay which the conduct of adopted by the majority as the ground of their their predecessors has occasioned. awards; and considerable sums have actually To attempt, instead of this, to enter into a new been paid to American claimants in cases where discussion on the merits of the particular decisions the award of the Commissioners has rested on of either commission, would be to abrogate the doctrines which are decidedly held to be errone- present treaty, and to transfer the questions back ous, and which would not, therefore, have been again to negotiation between the same parties, recognised in any transaction with a foreign State. who, from their past experience of the impossi
In America, a contrary course has been pur- bility of coming to a satisfactory conclusion upon sued. The two Commissioners nominated on the them, have long since mutually agreed to submit part of the United States to the commission un- to an arbitration. der the sixth article, have finally claimed the This objection applies not only to all retrospecright to invalidate, by their dissent, both the prin- tive examination of the particular cases already ciples and the effect of the decisions of the ma- decided, but also with equal force to any such jority, and have at length, by completely with prospective explanations as may tend to prejudice, drawing from the board, endeavored, as far as in by a positive stipulation, the judgment of the them lay, to arrest all its proceedings.
sworn Commissioners respecting any of the points In this state of things, the question of good faith on which the claimants and defendants are at issue. and reciprocal execution of treaty can admit of The injustice of such a revision might, perhaps, no doubt.
be thought more palpable and striking in those Under the commission for losses by capture, a cases where, by the award of the sworn arbitrators, majority, consisting of three American Commis- a new ground of right has actually accrued to the sioners, acting upon their oaths, has admitted claimant. But it would be no less unjust in prinAmerican claims, and has rejected British, in con- ciple to deprive the other creditors, whose cases tradiction to the opinions of the two British Com- are yet undecided, of their share in the benefit of missioners, and of the British Government. In the treaty, to take from them, by an ex post facto all these decisions, the British Government has agreement, the advantages of that full discretion acquiesced. Under the commission for debts, a which the treaty has already vested in the Cammajority, consisting of three British Commission- missioners. ers, acting also upon their oaths, has sanctioned This view of the case must preclude any deBritiski claims, and rejected American defences, tailed discussion of the principles adopted by either in contradiction to the opinions both of the two commission; or of such explanatory rules as might American Commissioners and of the Government be proposed on either side, to limit their future of the United States. On what ground of justice discretion, or to revise their past judgments. or good faith can the United States hesitate to Nor is there any ground to hope that such disabide by the arbitration to which they have agreed; cussions, even if they were not liable to the strong or dený to the British subject the benefit of the objections already stated, would lead to any satissame principle, the benefits of which have been factory conclusion between the two Governments. already received by their own citizens ?
The points in question are for the most part those