Installation of Conmission.

The first meeting of all the commissioners was held on May 29, 1797, and on that day the board was duly constituted by the administration of the requisite oath to all the commissioners, in the presence of each other, by the president of the court of common pleas for the first district of Pennsylvania, who met the commissioners at their office for that purpose.1

amination of

Claims.

The commissioners adopted rules to regulate Submission and Ex- the transaction of business, and before the lapse of the eighteen months prescribed by the treaty for the reception of complaints and appli cations, which expired at the end of November 1798, claims to the amount of $19,000,000 had been filed. The total was ultimately swollen to about $25,000,000. The examination of the claims began in January 1798, and was proceeded with for eighteen months as rapidly as matters of routine, the disturb ance caused by the prevalence of yellow fever in Philadelphia, and other interruptions would permit. On March 19, 1798,2 Congress created a fund for the payment of awards by appro priating $300,000 for that purpose, and until the illness of Mr. Innes the proceedings of the board do not appear to have been attended with any personal friction between its members, though, as was to be expected, their decisions had not all been unanimous. Indeed, with perhaps two or three exceptions of slight importance, the decisions had related to matters of practice. Comparatively a small part of the mass of the business which at length came before the board appeared till toward the close of the term of eighteen months prescribed by the treaty for the reception of complaints and applications.

Question as to Finality of Awards.

In one case, however, the agent of the United States excited some feeling by suggesting a doubt as to the binding character of an award in contingencies which he strongly suggested as possible, if

The oath prescribed by the treaty and taken by the commissioners was in the following form: "I, A. B., one of the Commissioners appointed in pursuance of the sixth article 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 under the said article shall be preferred to the said Commissioners; and that I will forbear to act as a Commissioner in any case in which I may be personally interested." 21 Stats. at L. 545.

not imminent. On this suggestion the board made the following order:

"COMMISSIONERS' OFFICE, Philadelphia, April 18, 1798.

"In the Case of William Cunningham, and others.

"The Answer of the United States, signed by their Agent, having in this case been printed and laid before the board,Ordered, that the General Agent for the Claimants, or Attorney for these claimants, have leave to see and reply to the same within three weeks; but with the exception of the introductory argument to impress on the commissioners (as it is there said) the primary importance of understanding the limits' of their duty, and instructing them, on the authority of Vattel, and with reference to a supposed case of manifest and intentional wrong, in the expediency of taking care that they do not 'renew the dissensions between the two nations,' by deciding in a manner so palpably absurd,' or so clearly proceeding from 'corruption, or flagrant partiality, as to entitle either nation to disregard the award? The Board make no further animadversion on the above argument than thus to state its import, and prohibit all allusion to such topics in future. They know no policy but that of justice, and look forward to no consequence but the consciousness of having done their duty.

"Ordered, that the Reply in this Case be printed; that this Order be therein fully recited, and copies hereof served upon the Agents for both parties."

This order was drawn by Mr. Macdonald. The AttorneyGeneral inquired whether it meant "that it belonged not to the Board to consider what the United States might think of their awards?" In answer to this inquiry Mr. Macdonald, "for the purpose of preventing, if possible, every cause of irritation or offence, and because the question had been put to the board, in writing, by the Attorney General," wrote a private note to the agent of the United States, saying that, while he officially had no concern with the question suggested in the answer in Cunningham's case how far the two nations would be bound by the awards of the board, privately he thought fit to declare that, in his opinion, in which he had reason to believe every member of the board agreed with him, "nothing could be more completely erroneous than the argument there maintained, and unfortunately exposed to the world in print;" that men of honor could not for one instant consider the question of consequences; that, "if he had ever imagined there was room for such a question, he certainly would not have consented to accept the situation of a Commissioner, to be employed in the frivolous occupation of giving judgments, which were to have effect, or not,

according to the pleasure of either of the parties;" that, unless the deviation from the cases submitted was manifest, such as, in the language of Vattel, could not be "rendered doubtful by the dissension of the parties," the award was "binding on both nations, without the smallest regard to what either of them singly may think of it;" that, while "a void award might by possibility be made by the board, such for instance as an award for confiscated land, or on debts contracted after the peace, and the like; which would be so manifestly out of the treaty that there could be no dissension' upon the subject," yet "men of common understanding" could not give "a void award under this treaty, without corrupt motives, because the deviation must be palpable, and of course intentional."

South Carolina Installment Laws.

On the 13th of July 1798 the board took up the case of Strachan and Mackenzie, which was based on the operation of certain statutes of the State of South Carolina, commonly called the "Installment Laws." With the exception of the claim of Bishop Inglis, which will be considered hereafter, it was the first case that came before the board requiring the decision of an important question.

By an ordinance of the legislature of South Carolina of March 26, 1784, it was provided that no suit on a debt contracted by a citizen of any of the United States prior to February 26, 1782, should be commenced till January 1, 1785, and that then only the interest which had accrued since January 1, 1780, should be recovered. After January 1, 1786, the rest of the interest became recoverable, and also the principal; but the latter only in annual installments of onefourth. This act was altered as to the amounts and periods of collectable installments by an act of March 28, 1787.2 By an act of November 4, 1788, all prior installment laws were repealed, and an annual installment of a fifth was adopted as the limit of recovery. Strachan and Mackenzie's claim consisted of a series of accounts, extracted from their partnership books in London, and ending in 1774, and of certain bonds, which were produced before the board. It was substantially admitted by the agent of the United States that a sum of

'Acts, Ordinances, and Resolves of the General Assembly of the State of South Carolina, Passed in the Year 1784, p. 81.

2 Cooper's Statutes of South Carolina, v. 36.

3 Id. 88.

nearly £17,000 was due on December 31, 1774, but he contended that the loss charged did not arise from the operation of the installment laws, but from other causes which would equally have operated to produce it. The board received writ ten evidence and examined witnesses, and, without dissent,

"Resolved, that the laws of South Carolina, passed subsequent to the peace, and known under the denomination of the Installment Laws, were lawful impediments to the recovery of debts secured by the treaty of peace; and in this case operated as such within the meaning of the sixth article of the treaty of amity."

Principles.

Thus far the commissioners had proceeded Discussion of General fairly harmoniously, but at this point Mr. Macdonald took a step which, however well intended, opened the way to and indeed necessitated the exchange of written arguments on general principles. He had made it "a practice," as he himself says, "to throw out for consideration such observations as occurred to him, at the moment, on the reading of every paper or argument before the Board." "The same principle," he further observes, "which forbade all official concern, respecting the reception or operation of an opinion, once maturely formed and conclusively declared, suggested the wish, that all possible aid and information should be previously obtained, and every opportunity of fair and friendly discussion employed;" and to this end he "thought of collecting and exposing his observations more distinctly to the view of all the members, as well as of himself, by putting them in writing, and entering them on the minutes, as matter for conference, when no other business (which was frequently the case) happened to be ready at the sittings of the Board." This idea was confirmed by the continued illness of Mr. Innes, since "the disclosure might be convenient for Mr. Fitzsimons, who had on many points expressed very different sentiments from the other members of the Board."

Mr.

Macdonald's
"Notes."

On July 25, 1798, Mr. Macdonald took the contemplated step by laying before the commissioners certain "notes," as "the substance of what he had occasionally, with great deference, submitted to their consideration; and which he wished to have entered in the minute book, as such; in order to subject them to that close examination" which the "importance of the matter" demanded, and his "desire to be explicit and correct" had

"prompted him to invite." In these "notes" there are the following passages:

"Under the fourth article of the treaty of peace, the points of enquiry are these:

"First. Was the debt fairly contracted before the peace? "Secondly. Did the whole, or any part of the full value of it, in sterling money, remain unpaid to the creditor at the peace? "If these points are answered in the affirmative, nothing can take the case out of the treaty of peace, but the free, voluntary, and uncontrouled discharge of the creditor. A discharge by act or operation of law, unsupported by such free and voluntary act of the creditor, still leaves the debt within the description of fairly contracted, and not fairly paid: and though such discharge by mere operation of law, would be good against an American creditor, it is of no avail against a British creditor; for this plain reason, that the right of the former is governed by the general law of the land, but that of the latter by the special law of national compact or treaty.

"The article contains no exception either as to the nature, or to the amount of the debts thereby secured. The words are incapable of any limited interpretation-all debts' of whatever nature-all debts' to their full amount, principal and interest, according to the original contract, or the law and usage which then prevailed. This seems to be the necessary exposition.

"To the recovery of the full value, in sterling money, of all such debts, fairly contracted and not fairly paid, it was agreed, and solemnly promised by the two nations, respectively, that the British creditors should meet with no lawful impediment' in America, and American creditors should meet with no lawful impediment, in Great Britain.

"The expression lawful impediment,' is as comprehensive, as it is applicable to the subject.

"Every cause of delay is an impediment.

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Every cause of delay arising positively, out of the operation and effect of law; or negatively, from the defect of law, is a lawful impediment.

"The scope of the article obviously was, that the law, or the defect of law, should not, on either side, stand between the fair creditor, and his unwilling debtor: that all laws which had been passed against such recovery, should be repealed; all necessary means in law restored; all bars, by past operations of law, having a present effect, removed: that the administration of law in the courts of justice, should afford a remedy for the right, according to the original contract; which nothing, as already stated, but the free, voluntary, and uncontrouled act of the party himself should be held to discharge-In short, that creditors who had already borne their share of suffering, under the common calamity of war, with all its train of incidental evils, including the loss of trade and business, as well