Lord Grenville that in the class of actions which had been decided in the high court of appeals the British agent replied that the commissioners had no jurisdiction, because the sen tences of that court were definitive; in the cases still pending before the high court of admiralty and the high court of appeals the agent took the ground that the commissioners had no jurisdiction, because the claimants, if entitled to compensation, might obtain it in the ordinary course of justice; in the cases in which unsatisfactory decrees had been rendered in the lower courts, but in which for various reasons appeals had not been claimed or prosecuted, he contended that the commissioners had no jurisdiction, because it was in consequence of the neglect of the claimants if at length they were unable to obtain compensation in the ordinary course of justice. This, said Mr. King, practically excluded all the claims.

Lord Grenville, while professing a great desire that the treaty should be executed, was unable to state what the final position of the British Government would be. He thought there would be great opposition to disturbing the sentences of the high court of appeals, and suggested that cases might be admitted in which evidence could be produced, or where the general opinion prevailed, that it would be of no advantage to appeal, and that possibly there might be other cases in which the commissioners could afford relief. Lord Grenville also suggested that the right to withdraw, which had been exercised by the British commissioners, was perhaps countenanced by the stipulation which required the presence of one commissioner at least on each side, thus leaving with the respective governments the power, by instructing their commissioners to withdraw, to prevent the decision of questions not intended to be submitted to them.

To this Mr. King replied that the commissioners were not to be considered precisely as an appellate court, having authority to reverse decrees rendered in His Majesty's courts of admiralty, or to order the restoration of the thing which had been condemned by them. The remedy of the treaty was not restoration, but compensation in the place of it-a remedy that presupposed the sentence of condemnation to stand unreversed as between the original parties, and the property to be vested accordingly. But he did not think there was any doubt as to the right to demand compensation for losses and damages sustained by reason of the condemnation as well as of the irregular capture of the ships and cargoes.

Lord Grenville closed the conference by expressing a wish that Mr. King would hold a conference on the subject with the Lord Chancellor, Loughborough, who had been consulted in the negotiation of the treaty and had taken a deep interest in its operation.

Loughborough's
Opinion.

On the following day Mr. King met the Lord Chancellor at the Duke of Portland's, when his lordship, referring to the pending controversy, expressed a desire for a conference and appointed a meeting for the next morning. Mr. King waited on him accordingly. The Lord Chancellor referred, as Lord Grenville had done, to an allegation in Mr. Bayard's memorials that certain. of the decrees of the high court of appeals were "illegal and unjust." He said that he did not think an allegation in that precise form was necessary in order to make out a case, and that Mr. Bayard should take back or amend, and prefer in a different form, his claim, so that it should adopt and follow the terms of the treaty. On the other hand, he said: "These general demurrers of Mr. Gostling are absurd, and he must take them back. The reasons assigned by him against the jurisdic tion of the commissioners, or in bar of the claim, are the very cases which it was intended should be examined and decided by the commissioners."

On the 26th of December, on the invitation of the Lord Chancellor, Messrs. Trumbull, Gore, and Pinkney accompanied Mr. King to his lordship's house. His lordship, after the customary salutations, observed that he had gone over all the cases but one which had been presented to the commissioners, and that he thought they would fall into three classes: (1) Cases of condemnation in the high court of appeals; (2) cases in which there had been decrees of restitution, but without costs or damages, or of condemnation without freight or costs; and (3) cases in which the right of appeal had been lost. In respect to the first class the Lord Chancellor said that the decrees must stand; that they settled the property and would not be affected by any act of the commissioners. Nevertheless, there might exist a fair and equitable claim upon the King's treasury, under the provisions of the treaty, for complete compensation for the losses sustained by such condemnation. In respect to the second class, while the property was restored, the claimant might not think this sufficient, and might claim costs and damages; so the decree of condemnation

might have been legal, but the claimant expected freight. The captures under the order of the 6th of November fell within this class. Again, the captor had color of authority to seize and to send in for adjudication. The court would restore the property, but would not condemn the captors in costs; and yet it would be just that the claimants should receive costs and damages. In respect to the third class, the court of appeals, said the Lord Chancellor, were obliged in some instances to refuse the appeal because, a limited time having been allowed in which to prefer it and that time having expired, the captor thereby acquired rights not within the discretion of the high court of appeals to impair. Still the claimant might be able in a satisfactory manner to account for his not having come personally forward with the appeal. This was undoubtedly a case within the provisions of the treaty. The property could not be restored, but the full value might be awarded, and in such cases it must be paid out of His Majesty's treasury. The commissioners were not a court of appeals above the high court of appeals. They were, however, competent to examine questions decided by the high court of appeals, as well as all other cases described in the treaty, and they could give redress, not by reversing the decrees already passed and restoring the identical property, but by awarding compensation.

On its being suggested that the same embarrassments as had already occurred might arise in the future, if upon every objection to the competency of the commissioners a reference must be made to the respective governments for their instructions instead of such questions being decided by the commissioners themselves, the Lord Chancellor said "that the doubt respecting the authority of the commissioners to settle their own jurisdiction, was absurd; and that they must necessarily decide upon cases being within, or without, their competency." Soon after the conference with the Lord Chancellor Parliament adjourned for the

Resumption of Pro

ceedings. Christmas holidays, and the business of the commissioners remained suspended until the 24th of January, when by appointment Mr. King met Lord Grenville at his office, and the latter, expressing regret at the delays that had taken place, said he hoped that the commissioners would go on without further interruption; that he had sent for the British commissioners and had told them "that it was the

opinion of the King's government, that they should proceed in examining and deciding every question that should be brought before them, according to the conviction of their consciences; in doing which they would examine cases already decided, and award on them and on all others, according to the provisions of the treaty, which it would likewise be their duty to consider and interpret." Lord Grenville added that it had not been deemed advisable to put anything in writing, as that would have the appearance of a new and explanatory article. After further conversation in relation to the dispatch of business by the high court of appeals the conference was brought to a close. The board reassembled. The memorials of Mr. Bayard and the demurrers of Mr. Gostling were withdrawn and new papers filed, and the commissioners proceeded to make awards.1

After the reassembling of the board several Awards and Delays. cases were disposed of by Sir William Scott and Dr. Nicholl, with the approval of the board. The first formal awards were made on the 13th of April 1797 by the concurrence of the two American commissioners and the fifth commissioner. These awards were in the case of the Betsey, Furlong, master, and of the Sally, Choate, master, in the former of which sentence had been rendered by the high court of appeals. The progress of the board was, however, greatly retarded in other cases by the absence of

This account of the controversy touching the finality of the decrees of. the high court of appeals is taken from a manuscript report of Mr. King to the Secretary of State of February 20, 1797. This being a contemporaneous and official document, we have preferred it to the account given by Mr. Trumbull from recollection, which runs as follows:

"My opinion was decidedly with the American members. But I saw distinctly, that in the eyes of the British gentlemen, the question was of the deepest importance, and that a decision contradictory to their reverential estimate of the sanctity of the high court of appeal, would be submitted to by them with extreme reluctance, if it did not produce a remonstrance against our abuse of authority-a refusal to proceed in the business-ultimately a dissolution of the commission;—and thus, a renewal of angry discussion between the two nations. I therefore took time to consider, and finally suggested, that the question should be submitted to the lord chancellor (Loughborough) for his decision. He had taken a deep interest in the negotiation of the treaty, and undoubtedly must know the intentions of the parties. The British members of the commission readily acceded to this proposal. An audience was asked of the lord chancellor, and obtained, at which all the members of the board were present. The question was stated by the senior British commissioner, on which the board requested his lordship's opinion, and the answer was immediate and frank. 'The

necessary proofs. This is an experience common to all claims commissions, and is due in part to the negligence or ignorance of claimants, and often in no small degree to the careless presentation of claims by one government to the other. The American commissioners strongly complained of the inartificial and fragmentary form in which claims were brought before the board, and advised that something be done in the United States to inform parties of the requisite proofs and to impress upon them the necessity of immediate and punctual attention to the subject.2

In accordance with this advice, the DepartNotice as to Proofs. ment of State issued on the 7th of September 1797 the following notice:

"A Detail of the Proofs necessary to be exhibited before the Board of Commissioners appointed, under the 7th article of the Treaty of Amity, Commerce and Navigation, between the United States and Great Britain, to adjust the Claims of the Citizens of the United States on Account of illegal Captures and Condemnations of their vessels, or other Property.

"In all cases the process, that is, copies of the proceedings in the vice-admiralty courts, or at least so much as is considered necessary before the Lords Commissioners, should be brought forward to accompany the claim preferred to the Board.

construction of the American gentlemen is correct. It was the intention of the high contracting parties to the treaty, to clothe this commission with power paramount to all the maritime courts of both nations-a power to review, and (if in their opinion it should appear just) to reverse the decisions of any or of all the maritime courts of both. Gentlemen, you are invested with solemn and august authority; I trust that you will use it wisely.' This decision of the chancellor terminated the difficulty, relieved me from a situation of extreme delicacy, and the board immediately proceeded in its duties." (Trumbull's Autobiography, 194-195.)

"Our commission has experienced some unexpected embarrassments, but the government has removed them in a way highly honorable and satisfactory. The King's agent objected to our jurisdiction in a case-a leading feature of which was that the Lords Commissioners of Appeal had affirmed the original condemnation. When the fifth commissioner, Gore, and myself were ready to overrule this objection, our right to decide upon our own jurisdiction was brought into question! The government has said that both points were against those who started them, and we are now prosperously under way again. I have no fears of a fair execution of the seventh article by this country." (Mr. Pinkney to Mr. Vans Murray, February 7, 1797, Pinkney's Life of Pinkney, 29.)

The board took a recess from July 1797 to November 1, 1797.

2 Messrs. Gore and Pinkney to the Sec. of State April 13, 1797. (MSS. Dept. of State.)