decide differently from the decisions which had been given preceding the treaty of amity;" and that, by the provisions of that treaty, "a right to 'full and adequate' compensation from the United States vested in those individuals, whose cases were then within the description it contained; a right not contingent, or fluctuating on future circumstances, but perfect and entire; to be carried into effect, not according to the precarious result of different experimental proceedings, in their nature dilatory, and tending from the costs of litigation, and the protraction of dispute, to an increase of the evil; but, by one simple and definitive course of remedy, prescribed jointly by the two nations, in the spirit of friendship and peace, for the purpose of speedily putting an end to the only remaining cause of irritation and discontent; and to be exclusively administered by arbitrators, whom they have mutually chosen, and invested with ample powers, for that wise and amicable purpose."

In order to prevent a vote on this resolution Withdrawal of Messrs. Fitzsimons and Sitgreaves withdrew, American Com- claiming that they were entitled to do so

missioners.

under the provision of the treaty which required the presence of "one of the commissioners on each side, and the fifth commissioner," to authorize the transaction of business. When the majority offered an explanatory resolution to the effect that the resolution which they had just offered "did not affect the case, where there was no satisfactory evidence, that the claimant could not at the date of the treaty of amity, recover a full and adequate compensation, in the ordinary course of judicial proceedings," Messrs. Fitzsimons and Sitgreaves again withdrew. They seceded again on the 26th of February, when the majority, with reference to the case of Bishop Inglis, offered a resolution that each of the five members of the board was "an arbitrator upon oath, to proceed diligently, and decide all questions, whether of interpretation or of fact, with perfect impartiality, and without any regard to his original appointment, or the manner in which the opinion he is bound in conscience to give, may affect the interest of the parties concerned." Thus, on the question of the duty of the claimant to pursue judicial remedies, there came about a complete deadlock.

Case of Andrew
Allen.

Nevertheless, the board, in spite of several further interruptions, continued in session for two months longer, a few claims being allowed and some dismissed. But in July 1799 its meetings were finally

suspended. On the 9th of that month the commissioners took up the claim of Andrew Allen, based on the operation of an act of the legislature of Pennsylvania of March 6, 1778, attainting him and certain other persons, as "subjects and inhabitants of the State of Pennsylvania," for the crime of high treason, in having, "contrary to the allegiance they owe to the said state, joined and adhered to the army of the King

2

of Great Britain." The agent of the United States objected to the claim, on the ground that, as the claimant was an inhabitant of the State of Pennsylvania at the date of the Declaration of Independence, he was a subject of that State; that "in fact, the United States were independent so early as 1775, and, on the ever glorious and memorable 4th of July 1776 they solemnly and formally declared to the world that they were independent;" that "the formal acknowledgment of his Britannic Majesty added nothing to their real Independence, and if the treaty of peace had never been made, the United States would have actually continued an independent nation, though at war with Great Britain at this moment;" and that, "though Andrew Allen, after being a subject of Pennsylvania, joined the British forces in December 1776 and returned to his natural allegiance, this did not dissolve the right of Pennsylvania to hold him as a subject, and as its subject to punish him." The British commissioners maintained that Allen, being a natural-born British subject, and being found on the side of his native allegiance at the peace, had not been deprived of that character, and was entitled to appear before the board as a claimant; and they offered a resolution, drawn by Mr. Macdonald, to that effect. To prevent a vote on this resolution the American commissioners withdrew. On the 16th of July, the resolution being again under discussion, Mr. Macdonald expressed the opinion, in which Messrs. Rich and Guillemard are said to have concurred, that the United States stood, from the beginning of the Revolution down to the treaty of peace, in a state of rebellion toward Great Britain, whatever may have

As stated in the act, Allen had been a "Member of the Congress of the thirteen United Colonies, now States, of America, for Pennsylvania." When the act was passed the British forces held Philadelphia, and it was recited that the persons attainted "yet remain with the said enemies in the city and county of Philadelphia, where they daily commit divers treasonable acts, without any sense of honour, virtue, liberty, or fidelity to this State."

2 Laws of the Commonwealth of Pennsylvania, Dallas' ed., I. 751,

been their relation toward other powers.' On the announcement of this declaration Mr. Sitgreaves withdrew from the board. Mr. Fitzsimons continued his attendance during the day, but on the following day did not return. On the 19th of July the two American commissioners addressed to Messrs. Macdonald, Rich, and Guillemard a brief communication, stating that on a review of what had occurred at the meetings and in the proceedings of the board, partly on a recent occasion, it was improper for them, under the existing circumstances, to give their further attendance. They promised in a future communication more fully to explain the motives upon which this determination had been taken.

Final Meeting and
Rupture.

On the 20th of July the three commissioners to whom the above communication was addressed made a reply, deprecating the withdrawal of the American commissioners, and adverting to the fact that Mr. Macdonald had lately given notice in the board of an intended motion in relation to an alleged improper publication of certain papers touching the case of Bishop Inglis. The American commissioners answered on the 22d of July, saying that the publication referred to was made in the first instance by the general agent for the claimant, and stated that they were willing to meet the board for the discussion of that subject, as well as for the additional purpose of concluding an award in another case, that of Hanbury. On the 23d of July Messrs. Macdonald, Rich, and Guillemard answered the American commissioners, charging the American agent with the publication in the Inglis case, and concluding as follows: "And now, gentlemen, we have only to say that, after what has passed on this and other occasions, you can not but perceive from the amicable tone and object of our correspondence and the suggestion which we have now in particular submitted to you, how little we suffer ourselves to be actuated by personal or national feelings against the straightforward course of our duty. We have but one object, and with that object we suffer no inferior considerations to interfere." An arrangement was made for the meeting of the commissioners on the 31st of July to consider the controversy respecting the publication in the case of Bishop Inglis, but, as might have been

"Messrs. Fitzsimons and Sitgreaves to Messrs. Macdonald, Rich, and Guillemard, September 2, 1799. (MSS. Dept. of State.)

anticipated from the character of the subject which they met. to discuss, the bitterness of feeling was only intensified, and the sessions of the board were not resumed. On the 2d of September 1799 the American commissioners transmitted to Messrs. Macdonald, Rich, and Guillemard the promised explanation of the causes of their abstaining from attendance. This explanation was acknowledged by the three commissioners to whom it was addressed in a letter bearing date the 4th of September 1799, beginning as follows: "We had yesterday the honor of receiving your letter of 55 pages, dated the 2d instant," etc. On the 30th of the same month they addressed to the American commissioners a still further reply, beginning as follows: "Gentlemen, your suspension of our official business, having left us at leisure for inferior occupations, we have again perused your long letter of the 2d instant." These letters were both undoubtedly drawn by Mr. Macdonald, and were largely devoted to the vindication of his personal conduct at the board. In a similar vein Mr. Rich, in announcing his intention to return to England, in consequence of the conduct of the American commissioners, in a letter to his colleagues, said: "From the unceasing labor of Mr. Macdonald and the energetic exercise of his superior talents, the steady and warm support of the fifth commissioner, and the aid which my feeble talents allowed me to give, from the perfect harmony that subsisted between us resulting from habits of daily communication and mutual confidence, the great business we were charged with might have advanced near to its conclusion had the other gentlemen been actuated to an equal degree by motives of honour, candour, and impartiality."

On the 4th of September 1799 Mr. Picker

Pickering's Expla- ing announced to Mr. King the dissolution of nations. the board, and, observing that there was no probability that the business could ever be accomplished by the present members, said: "Independently of the opinions strongly expressed, which it would not be easy to retract, there appears to be an incompatibility of temper; if I am rightly informed, it would be difficult for any set of American commissioners to act harmoniously with Mr. Macdonald unless they possessed such meek and yielding dispositions as to submit implicity to his dogmas. Such meekness is in his colleagues, Mr. Rich and Mr. Guillemard; who though they

appear, and I verily believe them to be, worthy men, have not in a single instance dissented from Mr. Macdonald or started an objection to anything he has advanced; so that it would be perfectly equal, as to the final issue of their proceedings, whether they continued members of the board, or that Mr. Macdonald were authorized on every question to give three votes. It has even appeared, as I have been informed, that Mr. Guillemard, who, as an umpire should have kept himself aloof, and formed his opinions upon discussions before the board, has been so little aware of what propriety and dignity imposed on him as a duty, that he has entered into the pri vate deliberations of the two British commissioners, and come to the board with all the decisive prepossessions which such private, partial consultations were calculated to produce. If I am rightly informed, Mr. Macdonald is not only thus predominant, but that, towards the American commissioners he has been in the highest degree overbearing and arrogant, and not very delicate towards our country."

Action of Lord
Grenville.

Lord Grenville readily admitted that in his opinion the British commissioners had pushed their construction of the treaty too far in the case of Bishop Inglis. There was not, he thought, sufficient evidence that the claimant could not have recovered his debts in the ordinary course of judicial proceedings. On the other hand, he declared that the action of the American commissioners would in great measure, if not wholly, defeat the ends of the treaty. Early in the proceedings of the commission at London, under Article VII. of the treaty, the British commissioners had asserted the right to withdraw to prevent the decision of cases which they did not consider to be within the jurisdiction of the board; but Lord Chancellor Loughborough, to whom the question was referred, overruled them, and they continued to give their attendance. Lord Grenville therefore protested against the course of the American commissioners at Philadelphia, and directed the British commissioners in London to suspend proceedings under Article VII. until the difficulty under Article VI. should be settled; and he directed the British minister at Philadelphia to endeavor to conclude an agreement on the subject.2

1 Am. State Papers, For. Rel. II. 383. See, also, Mr. Pickering to Mr. King, October 4, 1799, Id. 384.

2 Am. State Papers, For. Rel. I. 51; II. 390, 391.