"It is advisable, that in all cases the affidavit of the party, his clerks and others knowing the transaction, also copies and extracts of entries in the books of the party, made at the time of and relating to the transaction, the truth of which should be sworn to by his clerks, should be furnished to show that the voyage and property were as the ship's papers declare them to be.

"In many cases the party may hold letters and documents from the shippers and others, written at the time of and concerning the voyage, vessel and cargo, or either, which may be in question, and which letters may serve to confirm or elucidate other evidence. Should such be sent, accompanied by the testimony of the party and his clerks, that they are true, or if from any cause it may be inexpedient to send the originals, let the attestation be to the truth of the copy, and that the original contains nothing more as to that particular voyage or property. It will also be well to state the reason why the original is not sent.

"The foregoing will be highly useful in all cases, even in those cases where there was no act done by the master or by others to impair or lessen the force and weight of papers found on board at the time of capture, and where the papers were complete and genuine and the transaction on the face of it perfectly fair.

"In all cases where the ship's papers were incomplete, where the transaction was in any degree suspicious from the want of papers ordinarily used and found on board vessels, or from any act of the master or others in destroying or concealing papers, or attempting to secrete property of the enemy, such extracts, correspondence and affidavits, as aforementioned, will be indispensable to show fully and clearly to whom the property belonged and to remove all suspicions and doubts as to the truth and fairness of the transaction.

"There are several classes of cases in which a charge may be brought forward of wilful omission and neglect, and which charge it will be necessary to remove.

"It should be understood in the United States, that in some cases the party captured neglected to make a claim for his property in the vice-admiralty courts; that in some, after having made such claim there, he abandoned it; that in some after having prosecuted in the vice-admiralty, he failed to claim an appeal there, or give security for prosecuting his appeal; in some, the party neglected to claim or enter his appeal in the courts of appeal within the time limited by law, which time, in cases where there was a claim filed in the vice-admiralty court, is limited to nine months from the date of the sentence of the vice-admiralty, and in cases where there was no claim in the vice-admiralty, the time is limited to one year from the date of the sentence. There was at the request of Mr. Jay, a prolongation of the ordinary time for claiming appeals by special order of his Britannic Majesty. There are others where the party after having made his appeal neglected to take out the

usual process or to serve the same on the captors; and others where the party did not bring forward copies of the proceedings in the court of vice-admiralty.

"Testimony should be furnished satisfactorily accounting for the neglect or abandonment in the particular case, where it happened, and such as will remove the presumption of 'wilful omission and neglect;' where there has been an omission to claim in the vice-admiralty, or an abandonment of the claim after being duly preferred, or a neglect to claim an appeal in due season of law, or within the time allowed under the particular order of his Britannic Majesty, or to prosecute such an appeal by not taking out and serving the usual process on the captors, or by not bringing forward copies of the proceedings in the court of vice-admiralty.

"In cases where money has been expended in prosecuting for the property in the vice-admiralty courts in the West Indies or elsewhere, it is necessary that evidence should be furnished, showing the amount expended and that it was of necessity. The affidavit of the person paying or receiving the money, or of those who were present at the payment, or knew of its being paid, would be satisfactory. In cases where the vessel has been hypothecated or property sold to provide the security demanded for prosecuting appeals from the vice-admiralty courts, evidence should be furnished that such hypothecation or sale was necessary, the amount sold, the loss and damage which accrued to the party from such sale or hypothecation. Evidence of the price at which the property was sold, and that at which it would have sold at the place of destination, when the vessel would have probably arrived, had she not been stopped, will show the loss sustained by the sale.

"In cases of demurrage, the loss may be proved by showing what that vessel, or such a vessel, could have earned during the detention. This may be by the testimony of those who hired or let vessels at the time, by the expenses incurred in victualling the crew, by the hazard to the vessel from the nature and waters of the harbor or ports where she was detained. "In cases where a claim is preferred to the Board for compensation, for a loss sustained by capture and condemnation, the value of the property at the place of destination at the probable time of its arrival, had it not been prevented by capture, may be proved by the affidavits of auctioneers, brokers and others disinterested in the particular case, or in any cases under the commission: prices current published at such times and places, will afford very satisfactory evidence as to value. Evidence should be obtained from all the considerable seaports in the United States of the premium paid for insurance from the various foreign ports, especially in the West Indies or other foreign ports; and where the party has insured his property, he should prove the rate of premium at which he insured it.

"Department of State, 7th September, 1797."

The board proceeded without any notable Question as to Ex- incident until April 1798, when a new and hausting Judicial serious question of difference arose. On the Remedies. 10th of that month the period of eighteen months expired within which, by the terms of the treaty, claimants were required to present their petitions. When the day arrived numerous cases still remained unacted upon by the high court of appeals, and the competency of the board to pass upon such cases, as well as upon cases in which, a decree of restitution having been made, the claimant had not pursued his remedies against the captors, was immediately brought into question.

The American commissioners, anticipating such a contingency, had pressed the subject on the British commissioners during the preceding winter, and had suggested the expediency of reaching a decision before the term for the filing of claims had expired. As this was not done the American agent, on the 10th of April 1798, preferred to the board memorials in behalf of all American claimants whose cases were qualified, by the date of the capture, to admit of a complaint under Article VII.; and, as many of these cases were still unterminated in the courts, the issue was at once sharply defined. When the American commissioners announced their purpose to press for the disposition by the board of claims preferred in cases in which judicial processes had not been exhausted, the British commissioners stated that if their colleagues persisted in the attempt to decide such claims they would be compelled to secede, since they believed that the commission had no authority to render judgment on cases so circumstanced. The formal consideration of the question was then adjourned, and after several conferences it was agreed that the British commissioners should make a statement of the facts to their government, and at the same time say that the board would be disposed to delay decision on all cases then pending before the Lords Commissioners of Appeal until after their adjournment, which usually took place in August, and on all other cases until after the 1st of February 1799, unless sooner determined by the courts, provided that the British commissioners would concur in such decisions as the board should make.'

1 Messrs. Gore and Pinkney to the Sec. of State, June 8, 1798. (MSS. Dept. of State.)

Article VII. of the treaty, like Article VI., provided that the governments against which the claims were respectively preferred should afford redress where full compensation could not, "for whatever reason, be actually obtained, had and received" by the claimants "in the ordinary course of judicial proceedings." On this question the positions of the commissioners at Philadelphia and at London were precisely reversed. At Philadelphia it was the British commissioners who contended for immediate awards without requiring the claimants to exhaust their judicial remedies. At London it was the American commissioners who assumed this position. Both were partly in the right and partly in the wrong. To render awards where the claimants had a substantial judicial remedy was to obliterate the resort to judicial channels. On the other hand, to require the claimants to exhaust every possible judicial recourse, whether it promised substantial redress or no, would in many cases have had the effect of relieving the two governments of responsibility for their wrongdoing at the expense of the claimant and of working a denial of justice by the delay of reparation.

The British commissioners duly reported the Case of the "Sally." matter to their government, but a definite response not having been made, Mr. Pinkney, at a meeting of the board on June 11, 1798, submitted in the case of the Sally, Hayes, master, in which the Lords Commissioners of Appeal had entered a decree of restitution, but in which the ordinary remedies against the captors, subsequent to such a decree, had not been tried, the following motion:

"That it sufficiently appears in this Case that the claimant could not at the time of concluding the Treaty actually obtain, have & receive in the ordinary course of judicial Proceedings adequate compensation for the loss & damage alleged to have been sustained by the capture and condemnation complained of according to the true intent and meaning of the 7th article of the said Treaty, and that the Board do now proceed to examine the Merits of this claim and determine whether the claimant is entitled to compensation for said loss and damage.”

At a meeting of the board on the 20th of June the British commissioners moved that in lieu of the above resolution the following should be adopted:

"That as prceedings are still depending before the Lords Commissioners of Appeal, where the claimant may in the ordinary course compel the sureties who have given bail to answer

the appeal, or the owners of the capturing Vessel, or the sureties on granting letters of marque, to carry into effect the sentence of restitution pronounced in this case, it does not sufficiently appear that compensation might not at the time of concluding the Treaty and cannot now be had and obtained in the ordinary course of judicial proceedings.

"That it is, in this case, the more incumbent on the claimant to pursue his remedy against the private parties who are answerable to him, as it does not sufficiently appear that he has hitherto used due diligence in endeavoring to carry into effect the sentence of restitution pronounced in his favour, he not having exhibited before the court any account of the value of the property decreed to be restored in order that such account duly authenticated might be referred to the Registrar in the usual way to ascertain such value, but has elected to await the production in the first instance of the account of sales by the captors and even for that purpose has suffered a greater. length of time to elapse than is satisfactorily shown to have been necessarily consumed.

"That the consideration of the Merits of the Claim be postponed for the present and until it shall farther appear that compensation cannot be obtained in the ordinary course of justice."

The question being put on the latter motion, it was determined in the negative. The question was then put on the principal motion and carried in the affirmative.

Thereupon the British commissioners directed the following declaration to be entered on the journals:

"The British Commrs. declare that they do not think themselves competent under the words of the treaty or the commission by which they act to take any share without the special instruction of the King's Ministers in the decision of any cases, in which the judicial proceedings are still pending in the ordinary course of justice. But in order to obviate all difficulties on this subject, they propose that a statement shall be made by this Board and transmitted to His Majesty's Ministers, and to the Minister Plenipotentiary of the United States of America, in order that such arrangements may by mutual consent be made on this head as may best promote the object of speedy & impartial justice & good understanding. And in the mean time they think it right to declare their readiness to proceed in the cases now before the Board, not subject to this question." The British commissioners accordingly moved

"That a statement shall be made by this Board & transmitted to his Majesty's Ministers, and to the Minister Plenipotentiary of the United States, in order that such arrangements may by mutual consent be made on this head as may best promote the object of speedy & impartial justice and conduce to mutual satisfaction & good understanding."