Secretary and other When the commissioners, pursuant to this notice, assembled on the 10th of October, they proceeded to appoint a secretary and other necessary officers and establish rules, and to transact such other business as came before them.1 They chose as secretary Francis Moore, and appointed James Western and Thomas Robert Harris as clerks. On the 19th of October these persons each took an oath of office and entered on the discharge of their respective duties.2 Agents. Each government appointed an agent, whose function it was to represent before the commission the interests of his government and the claims of its citizens. In this capacity Nathaniel Gostling, a proctor of the court of admiralty, appeared on the part of Great Britain. In a similar capacity Samuel Bayard, of Philadelphia, appeared on the part of the United States. After retaining the place for about two years, he resigned it and was succeeded by Samuel Williams, who was in turn succeeded by G. W. Erving. Assessors. In order to ascertain the amount of compensation that should be awarded in cases in which any should be found to be due, the commissioners decided to adopt the procedure of the court of admiralty and name two merchants, one from each nation, to act as assessors, whose duties, as defined in the records of the commission, were "to ascertain the value at the time of capture, Trumbull's Autobiography, 192, 193; Pinkney's Life of Pinkney, 25. 2 MSS. Dept. of State. 3 Mr. Jay having suggested in the summer of 1794 that a person should be sent to England to represent the claims of American citizens before the prize courts in that country, Mr. Bayard was selected for the purpose with the approbation of the merchants of Philadelphia interested in British captures. He appears to have sailed in the ship Adriana on November 9, 1794; he landed at Falmouth and arrived in London in December. Mr. Bayard was born in Philadelphia January 11, 1767; graduated at Princeton College in 1784, and read and practiced law in his native city. After his return to the United States he became a judge of the court of common pleas of Westchester County, New York. (Am. State Papers, For. Rel. I. 484, 499, 501; The Bayard Family of America and Judge Bayard's London Diary of 1795–96, by Gen. James Grant Wilson, Huguenot Society, April 17, 1890; Dod's Journal of Martha Pintard Bayard.) There is a manuscript volume of Mr. Bayard's reports as agent for prizes in London in the Department of State. 4 Mr. Erving was afterward minister of the United States at Copenhagen and Madrid. There are commendatory references to him in Wharton's International Law Digest, III. App. 867, 881. and of the goods and merchandise at the port of destination, at the probable time of arrival; the compensation to be paid as demurrage to the claimant for detention, and what compensation ought to be paid on account of damages alleged to have been sustained by the vessel, and expenses necessarily incurred by the owners by reason of the detention thereof, and of the cargo; compensation for any loss or damage arising from the necessary hypothecation of a vessel and cargo for the purpose of enabling the charterer to obtain the security prescribed by the sentence of a court, as a condition of the restitution; the difference between the sum paid by the British Government, and the value of the cargo at the place of destination." Samuel Cabot, an American merchant, was appointed to act in this capacity on the part of the United States, and Alexander Glennie, a British merchant, on the part of Great Britain. On February 5, 1797, the day of their appointment, they attended and "took an oath carefully to examine all matters referred to them by the Board, and faithfully and impartially to report upon the same according to their instructions. and the best of their skill and judgment." At the same time the board ordered that a copy of every order of reference to the merchants should be transmitted as soon as possible to the agent for the claimants and the agent for the Crown, and that as soon as the merchants should have made their report a copy of it and of the account or schedule therein referred to should also be transmitted to the agents, who should respectively be at liberty to file their objections to such report within one week after it should have been made. It was also ordered that the assessors should receive, according to the usage of the court of admiralty of Great Britain, the sum of five guineas for every case reported upon by them. Before the conclusion of the labors of the commission Mr. Cabot resigned his post, and Mr. Erving, who had been appointed as agent was also designated by the Government of the United States to act as assessor; but the commission declined to receive him in that capacity, deeming it incompatible with his functions as agent, and Mr. Erving on being informed of their objection resigned his appointment as assessor. Mr. Cabot was then induced to return to the post on the payment of an annual salary of $1,500 in addition to the irregularly recurrent fee of five guineas. The services which he rendered in his capacity of assessor were not only laborious, but by reason of his experience and knowledge were also of great value.1 mission's Jurisdiction. The commissioners had not proceeded far Difference as to Com- in their deliberations when, in the case of the Betsey, Furlong, master, a violent dissension. arose as to the extent of their jurisdiction, and their power to determine to what cases it extended. The question on which this disagreement occurred was that of the finality of the decrees of the English High Court of Appeals in prize causes-the Lords Commissioners of Appeal-in af firming the condemnatory sentences of the prize courts. The American commissioners maintained that such decrees could not be regarded as final, since, if based on rules or on orders in council that were violative of the law of nations, they merely consummated the wrong of which the United States complained and for which it had been promised compensation. While the fifth commissioner coincided in this view, he was deprived of the power to render a decision by the assertion by the British commissioners of a right to withdraw from the board, the treaty requiring at least one of the commissioners on each side and the fifth commissioner to be present at the performance of any act appertaining to the commission. In this way the progress of the board was brought to a halt. In this dilemma Rufus King, who then represented the United States at the Court of St. James, held on the 16th of December 1796 a conference with Lord Grenville, in order to ascertain how far the action of the British commissioners met the approbation of His Majesty's government. Mr. King told Trumbull's Autobiography, 352–355. 2 On December 16, 1796, Messrs. Gore and Pinkney wrote to the Secretary of State of the United States that their opinions on the power of the board to determine its own jurisdiction had been written, and would be presented to the British commissioners for their perusal. Subsequently they reported that, when the opinions were offered, Mr. Anstey declined to read them on the ground that Lord Grenville desired that there might be no interchange of written opinions. Mr. Nicholl, however, not deeming himself precluded from perusing them, Mr. Gore's was delivered to him. In returning it, some time after the objection to the board's proceeding had been removed, Mr. Nicholl made a memorandum in which he said that "the objection was not stated correctly in its full extent, at least so far as regarded Dr. Nicholl, and that from many parts of the remarks he conceived that he must in various instances have been misapprehended by Mr. Gore." (Messrs. Gore and Pinkney to the Sec. of State, July 29, 1797, MSS. Dept. of State.) 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 coudemned 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 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 |