Relations with Great Britain. public 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 just, or 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 claim The second, except the third point of proof. The third, unless an exception should be deemed proper in the case of judgments since 1789, on the statute of limitations. The fifth, except the words "might have been or." And the sixth, requiring the appointment of a new set of Commissioners. To the documents before enumerated are added draughts of an explanatory article, and a letter referring to it, prepared by the Attorney General, which, though not prescribed by way of instruction, yet, containing ideas proper to be known by you, the President has thought it expedient to have forwarded. Definitive instructions will be committed to the care of Mr. Sitgreaves, who proposes also to take with him copies of the laws of different States, referred to as legal impediments, or the causes of them, reports of cases adjudged in American courts, and some other documents which he thinks will be useful in the course of your negotiation. Your full powers to conclude an explanatory article are enclosed, and a list of all the papers herein before referred to. It is expected that Mr. Sitgreaves may be ready to embark in two or three weeks, if a convenient passage can within that time be obtained. With perfect respect and esteem. I am, dear sir, &c., TIMOTHY PICKERING. The Secretary of State to Mr. King. I have further to inform you that Mr. Sitgreaves having, as one of the Commissioners, assiduously DEPARTMENT OF STATE, Feb. 7, 1800. and thoroughly investigated the subject, and thereDEAR 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. Sitgreaves 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 the board for the purpose of delaying payments by the United States, you well know that nothing can be more unfounded than this imputation. The President is anxious to have the expected explanations speedily agreed on, that the business of the boards in London and Philadelphia may be resumed. There is not any branch of the Government, nor, within my knowledge, an individual officer, who would not view with disdain the insinuations above mentioned. But the disposition and opinions predominating with the Commissioners from Great Britain are utterly incompatible with harmony in the proceedings, and, as we conceive, with justice and equity, in the adjustment of British claims. Besides, the personalities which have taken place between the members, rendering any further cordiality between them hopeless, show the dissolution of the present board to be indispensable. Mr. Liston has been informed that Mr. Sitgreaves was to go to London because it was supposed that he would think it proper that Mr. Macdonald should repair thither also; and doubtless he will speedily embark. But this letter cannot be closed without expressing to you the President's sense of the injury done to the American Commissioners and Government, by the suspicion which appears to have been suggested to, if not entertained by, the British administration, that the final secession of the American Commissioners from the board was caused or influenced by any considerations of interest, either to individuals or the States, to arise by delaying awards and payments. Such a suspicion should be repelled with earnestness, and even with disdain. I have the honor to be, &c. TIMOTHY PICKERING The Secretary of State to Mr. King. DEPARTMENT OF STATE, Aug. 23, 1800. SIR: Your letters stating your negotiations with Lord Grenville respecting the differences which have arisen in executing the sixth article of our Treaty of Amity, Commerce, and Navigation with Great Britain, have been laid before, and considered by, the President. 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 ought to be desired by both nations, because it is just in itself, and because it will remove a subject of controversy which may, in the course of events, have a very unhappy influence on that good understanding and friendly intercourse, which it is the interest of both to preserve. He perceives with concern, not entirely unmixed with other sensations, that the secession of the two Commissioners from the board lately sitting in Philadelphia, has been attributed, not to its real cause, but to motives which in no instance have ever influenced the American Government. That Government is, as it has ever been, sincerely desirous of executing, with perfect and scrupulous good faith, all its engagements with foreign nations. This desire has contributed, not inconsiderably, to the solicitude it now manifests for the explanatory articles you have been instructed to propose. The efforts of the American Commissioners to proceed and decide on particular cases, instead of laying down abstract principles, believed to be untrue in themselves, ought to have rescued their Government from suspicions so very unworthy, and so little merited by the general tenor of its conduct. The resolutions, maintained by a majority of the late Board of Commissioners, are such as the Government of the United States can never submit to. They are considered not as constructive of an existing treaty, but as imposing new and injurious burdens, unwarranted by compact, and to which, if in the first instance plainly and intelligibly stated, this Government never could and never would have assented. This opinion is not lightly taken up; it is a deep and solemn conviction, produced by the most mature and temperate consideration we are capable of bestowing on the subject. This being the fixed judgment of the United States, it is impossible not seriously to apprehend, unless we could forget the past, that no attempt by arbitration to adjust the claims of individuals under the sixth article of the treaty, previous to an explanation of it by the two Governments, can be successful. A second effort at this adjustment, by the proposed modification of the board, while the principles heretofore contended for receive the countenance of the British Government, would most probably, unless, indeed, the board should again be dissolved, subject us to the painful alternative of paying money which, in our best judgment, the Commissioners had no power to award, or of submitting the public faith to imputations from which it could only be freed by a correct and laborious investigation of the subject. In such a situation, presenting to us only such an alternative, we are extremely unwilling to be placed. It is, then, very seriously desired that the explanations required by this Government should be made. They are believed to be so reasonable in themselves, and to be so unquestionably in the spirit, and to the full extent of the existing treaty, that it is hoped the difficulties, on the part of the British Cabinet, may yet be removed. The note of the 18th of April, addressed to you by Lord Grenville, stating the determination of the British Cabinet not to modify, but reject, without discussion, the explanatory articles proposed by you on the part of the United States. assumes, as the base of its decision, a principle not only so different from those admitted by this Government, but so different from those recognised by both nations in the Treaty of Amity negotiated between them, and which ought, therefore, to be adhered to in all explanations of that treaty, as to warrant a hope that the determination announced in that note may not be unalterable. His Lordship assumes as a fact that "the fourth article of the Treaty of Peace not having been duly executed on the part of the United States the British Government withheld the delivery of the forts on the frontier of Canada, in order that these might serve as a pledge for the interests and rights secured to the British creditors under that article." But this is a fact which the American Government has ever controverted, and which has never yet been established. Without entering into the always unavailing and now improper discussion of the question, which nation committed the first fault, it ought never to be forgotten that the treaty in which the claim of the British creditors, on the United States, originated, was avowedly entered into for the purpose of terminating the differences between the two nations "in such a manner as, without reference to the merits of their respective complaints and pretensions, may be the best calculated to produce mutual satisfaction and good understanding." In questions growing out of such a treaty, neither nation can be permitted to refer to and decide the merits of those respective complaints and pretensions, by asserting that the other, and not itself, has committed the first fault. Lord Grenville then proceeds on the idea that the Commissioners appointed by the American Government have withdrawn from the board, merely because awards were rendered against their opinion, and on claims which they believed to be unjust. But this idea is neither warranted by the conduct or declarations of the American Commissioners, nor of the Government which appointed them. It has been, and still is, expressly disavowed. The Commissioners and their GovernThe President, therefore, requests that you willment acquiesced under opinions which they co 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 opinions, 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- ments, 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 difficulty is, perhaps, increased by the extravagant claims which the British creditors have been induced to file. Among them are cases believed to be so notoriously unfounded, that no Commission We understand the treaty differently from what Lord Grenville would seem to understand it, when he says the decision of the board, constituted according to the provisions of that instrument, "was expressly declared to be in all cases final anders, retaining the slightest degree of self-respect, conclusive." These terms have never been understood by us as authorizing the arbiters to go out of the special cases described in the instrument creating and limiting their powers. The words "all cases" can only mean those cases which the two nations have submitted to reference. These are described in the preceding part of the article, and this description is relied on, by the United States, as constituting a boundary, within which alone the powers of the Commissioners can be exercised. This boundary has, in our judgment, been so totally prostrated, that scarcely a trace of it remains. The reasoning on which we have formed this judgment it would be unnecessary to detail to you, because you are in perfect possession of it. Believing the British Cabinet disposed to act justly and honorably in a case in which we conceive their reputation, as well as ours, to be concerned, we have been confident in the opinion, that to obtain their serious attention to the subjects of difference between the two nations, was to secure the establishment of that reasonable and liberal construction of the article for which America has contended. We shall abandon this opinion with reluctance and regret. can establish them. There are many others where the debtors are as competent to pay as any inhabitants of the United States; and there are others where the debt has been fairly and voluntarily compromised by agreement between creditor and debtor. There are even cases where the money has been paid in specie, and receipts in full given. I do not mention these distinct classes as comprehending all the classes of claims filed which can never be allowed; but as examples of the materials which compose that enormons mass of imagined debt, which may, by its unexamined bulk, obstruct a just and equitable settlement of the well-founded claims which really exist. The creditors are now proceeding, and, had they not been seduced into the opinion that the trouble and expense inseparable from the. pursuit of old debts, might be avoided by one general resort to the United States, it is believed they would have been still more rapidly proceeding in the collection of the very claims, so far as they are just, which have been filed with the Commissioners. They meet with no obstructions, either of law or fact, which are not common to every description of creditors, in every country, unless the difficulty, 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 cirvious to the establishment of the Federal courts. cumstances which can influence the negotiation, enable you to decide more certainly than can be done on this side of the Atlantic, on the precise course which it may be most advantageous to pursue. To your discretion, therefore, the President entirely submits this part of the subject. If the explanatory articles so much desired by the United States be unattainable, the substitution of a gross sum, in full compensation of all claims, This opinion is founded on a conviction that our judges give to the fourth article of the Treaty of Peace, a construction as extensive as ought to be given to it by Commissioners appointed under the sixth article of the Treaty of Amity, Commerce, and Navigation. Those who have attended most to this subject, are of opinion that the sum which might properly be awarded against the United States would fall Relations with Great Britain. short of any estimate which has probably been made of it in England, or by the British creditors or agents in this country. We are, however, sensible that Commissioners, acting within their powers, may extend the sum further than justice or a fair construction of the article would extend it; and we have been taught to apprehend a construction, of which, at the ratification of the treaty, no fear was entertained. From this persuasion, and from a solicitude to perform what even rigid and unfavorable judges may suppose to be enjoined by good faith, the interests of the United States may require, and the President is, therefore, willing, that the agreement should not be strictly limited by the sum for which, in our opinion, we ought to be liable. He will be satisfied with four millions of dollars. He will not consent to exceed one million sterling. If a gross sum, in satisfaction of all other claims, be accepted, you will, of course, stipulate for the lowest possible sum, and for the most favorable instalments which may be attainable. appear to him that the board here had authority to allow interest for this portion of time. That he made me this communication in hopes that we might agree in the just interpretation of the pow ers of the Commissioners, as it would be disagree able, particularly at the juncture of affairs when he was speaking, again to arrest the proceedings of the Commissioners. I replied that the subject was both unexpected and new, that it should receive my immediate consideration, and that I would take the earliest opportunity in my power of conversing with him respecting it. After maturely reflecting upon the objection which originated with and was entertained by Doctor Swabey before the conclusion of the convention, in virtue of which the board has resumed its proceedings, I informed Lord Hawkesbury that I was ready to meet him; but, owing to the discussions going on with France, he has not yet appointed a day to receive me. In the meantime, the commission proceeds in examining and deciding 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 inadmissible opinions which have dissolved the past, and will most probably dissolve any future board. Before 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 temper in which the Commissioners to be appointed will meet ought to be received. And yet we are not satisfied that good faith does not require that, notwithstanding the past, we should consent to make a second effort for the execution of the sixth article of the treaty, in the forms it has prescribed. On this part of the subject, however, the President has come to no determination; so soon as his decision shall have been made, it shall be communicated to you. With very much respect, &c. J. MARSHALL. No. 87. Mr. King to the Secretary of State. LONDON, March 25, 1803. SIR: It is now nearly a fortnight since Lord Hawkesbury informed me that he had lately ascertained that the American Commissioners, under the seventh article of the Treaty of Amity, and Commerce, with the concurrence of the fifth Commissioner, conceived themselves authorized to allow interest upon the claims before them for the time during which the proceedings of the board had been suspended. That, as this suspension had taken place, in consequence of the suspension of the commission in America, it did not With perfect respect and esteem, I have the honor to be, sir, your obedient and faithful servant, RUFUS KING. Mr. King to the Secretary of State. LONDON, April 23, 1803. SIR: In my No. 87, I mentioned the difficulty which had arisen respecting the proceedings of the Commissionors under the seventh article of the treaty of 1794. Several conferences have since taken place between me and Lord Hawkesbury, but the impediment is not yet removed. At my first meeting with Lord Hawkesbury, after the communication he had made to me on this subject, I stated to him the arguments that, in my 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. Swabey, the objection would have been given up. Some days afterwards, the under Secretary, Mr. Hammond, on the part of his Lordship, proposed to me, as a compromise, that three per cent. instead of six per cent. interest should be allowed upon the whole of the claims during the suspension of the commission. In my last conference, I informed Lord Hawkesbury that I could not consent to the proposed compromise, seeing no just principle upon which I could do so. He desired me, however, to confer with the Lord Chancellor upon the subject; which I shall do to-morrow, or the day after. If the objection be persisted in, the British Commissioners will be instructed not to sign the awards unless the interest, in whole or t a t Relations with Great Britain. Esquire, London, dated DEPARTMENT OF STATE, Dec. 2, 1800. DEAR SIR: I have had the pleasure of receiving your letters of the 29th of September, and among them that of the 23d, enclosing a copy of your letter of the 22d of April, the original of which had unfortunately miscarried. in part, during the suspension of the commission. J. Marshall, Secretary of State, to Samuel Sitgreaves, be omitted. In this case, the Commissioners will enter their protest against this instruction; and, from a conversation I have had with the fifth Commissioner, I perceive it to be his opinion that the awards should then be made, although lessened in their amount, by a total or partial deduction of the interest during the suspension of the commission. This course, in his opinion, will avoid the delay and uncertainty of a negotiation between the two Governments respecting the instruction that may be given to the British Commissioners, and, moreover, secure to the claimants their compensation, except so much thereof as may be withheld by instruction of the British Government, which may become the subject of future demand and negotiation. It is probable that, before this can reach you, the negotiation respecting the sixth article of our Treaty of Amity, Commerce, and Navigation with Great Britain will have terminated, and that Mr. King will have come to some agreement with Lord Grenville, or will be able to state precisely the ultimata of the British Cabinet on this subject. Should it, contrary to our expectation, remain open, the President is of opinion that informal explanations may be received in lieu of articles required, provided sufficient assurances accompany them that the Commissioners, on the part of His Britannic Majesty, will, in the truespir it of conciliation, conform to those explanations. As I understand the objection, on the side of the British Commissioners, it is founded on the allegation that the treaty of 1794 did not foresee the suspension of the commission that has taken place; that the convention has not provided for it, and therefore, it is to be regarded as casus omis- The idea suggested to Lord Grenville by Mr. sus. 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-ble us to enter again on the execution of the sixth ers, reassembles them, and authorizes them to proceed in all respects, (except one, which is irrelative to the point in discussion,) as is provided by the treaty it therefore authorizes them, posterior to and including the time of their suspension, to examine and decide, and to grant full and complete compensation in all cases submitted to their decision by the treaty of 1794. article without submitting to injurious and disgraceful imposition, this idea may, perhaps, be so improved as to become. the foundation of a reasonable accommodation. It is certainly recommended by the probabilities you have suggested. If the system of informal explanation should be adopted, and a new board be constituted, in the 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 be authorized to proceed on condition that a moiety only of the interest should be allowed. With perfect respect and esteem, I have the honor to be, sir, &c., RUFUS KING. Extract of a letter from Mr. King to the Secretary of "LONDON, April 30, 1803. RUFUS KING." would be, therefore, with reluctance receded from; indeed, there are among them some from which we never ought to recede. Such, for example, as that, to charge the United States, the British creditor must bring his case completely within the treaty, and not require that the United States should furnish evidence to discharge themselves from every claim which may be at present, or, on the signature of the Treaty of Amity, may have been unpaid. Such a construction appears to us so totally unreasonable, that we should never have deemed it necessary to guard against it, had not the principle been already asserted, and it is of course a construction to which we never can and never ought to submit. Other principles were insisted on which seem to us not less objectionable. But if it shall be found that a new board is to be resorted to, it will become necessary to revise the instructions which have been given, and to modify them so far as a proper respect for justice and our own character will permit. |
