The question being put on this motion, it was decided in the negative. The British commissioners then moved "That copies of this days proceedings be made & transmitted to His Majesty's principal Secretary of State for Foreign Affairs and to the Minister Plenipotentiary of the United States of America." This motion was agreed to, and the board adjourned to Friday, the 22d of June. Opinion of Mr. At a meeting of the board on June 28 the British commissioners, at the opening of the proceedings, declared, in respect to the case of the Sally, Hayes, master, that the minutes of the session of June 20 having been transmitted to His Majesty's secretary of state for foreign affairs, and their judgment remaining unaltered, their assisting provisionally, and until they should have received further instructions, at the proceedings of the commission, in any case still pending in the ordinary course of justice, was not to be understood as in any manner concluding their own opinions as to the powers of the board, or the determination which might be taken on the subject by the two governments. Mr. Gore then read an opinion on the declaration of the British commissioners of June 20, and it was entered on the record. It is printed in the digest. Judicial Remedies. At a meeting of the board on August 3, 1798, Arrangement as to the British commissioners announced that they had been authorized to proceed to the examination and decision of all claims preferred to the commission, where it should appear that the report of the regis trar and merchants, after a decree of restitution by the lords, had been confirmed by that tribunal, although no further judicial proceedings had taken place in consequence of the confirmation. Dr. Nicholl also stated that the Lords Commissioners of Appeal had passed an order that in all cases decided before the 1st day of August, the captors should peremptorily produce the account of sales on or before the first day of the next Michaelmas term; that in all cases to be heard before the 1st of September the account of sales should be produced before the 1st of the following January; and that in all other cases the account of sales should be produced within one month after the sentence of restitution, in default of which the registrar, at the request of the claimant, was forthwith to proceed to ascertain the value by the account produced by the claimant, liable to the usual objection by the captors. After these announcements, the board was adjourned to the 1st of October, in order to afford time for the disposition of cases before the Lords. ment. The decision of the British Government was Effect of Arrange- received with great satisfaction both by Mr. King and by the American commissioners. Taking the order of the Lords as part of it, it dispensed with all proceedings in the ordinary course after a confirmation of the report of value, and facilitated the procuring of that report by removing the difficulty and delay which had been experienced in obtaining the production of the account of the sales by the captors. It enabled the board to make awards without awaiting the interminable process to compel the captors to comply with the decrees of restitution, the British Government, in virtue of assignments, which were provided for in a clause in the seventh article, taking upon itself to recover the property from the captors.2 Business in the This arrangement having been effected, the high court of appeals was almost exclusively occupied in disposing of the cases that fell within the provisions of the treaty. For some time it had 1 Messrs. Gore and Pinkney to the Sec. of State, August 4, 1798. (MSS. Dept. of State.) 2 Mr. King to the Sec. of State, August 3, 1798. (MSS.) The ordinary course of proceedings in the prize courts is set forth in a communication made by Sir William Scott and Dr. Nicholl to Mr. Jay, September 10, 1794. (Am. State Papers, For. Rel. I. 494-496; 1 C. Rob. 389-394.) While the controversy was pending in the summer of 1798 as to the powers of the board in respect to cases still pending in the high court of appeal, the same eminent practitioners in the courts of admiralty presented the following account of the ordinary proceedings following a decree of restitution: "When a sentence of restitution has been obtained upon an appeal, the first object is to ascertain the value of the property decreed to be restored, for which purpose we understand that in the usual course of proceedings the claimant is entitled to an account of sales from the captor to be within a short time exhibited on oath; which account of sales is open to all objections that may be taken by the claimant: and the claimant 18 likewise entitled to exhibit his account of what he deems to be the true value of the property restored, which is open in like manner to the objections of the captor. It is to be observed that the claimant is not bound to call for the captor's account of sales, nor to wait until it is voluntarily produced, but may bring forward his own estimate of the value, given special attention to such cases, and since the beginning of the year had decided 103 of them, in 61 of which there were decrees of restitution, in 21 orders for further proof, and in 4 condemnation as to part and orders for further proof as to the residue of the cargo. In an appeal for freight the appeal was rejected, and there were 16 decrees of condemnation. Not a little delay however was encountered in the high court of admiralty, owing to the increasing age and infirmities of the judge, Sir James Marriot. On the 16th of October 1798 he resigned, and was succeeded by Sir William Scott, by whom the business was promptly dispatched. Suspension of Board's After the reassembling of the board in October 1798 its proceedings were continued till July 20, 1799, when the British commissioners presented the following paper: "20 JULY, 1799. "Dr. Swabey and Dr. Anstey stated to the Board that they had received his Majesty's commands intimating to them that in consequence of information received from his His Majesty's minister to the United States, that the proceedings of the Board of commissioners appointed under the sixth article of the treaty of Amity, Commerce and Navigation between His Majesty and the United States are suspended by the refusal and may claim to have that considered as the measure of the restitution, subject to the objections of the captor. "The registrar, upon a view of the accounts, supported by such documents as the parties choose to bring in, determine in the first instance the value; this report being liable to the revision of the court, on the objection of either party. If there is no exception taken to the report, or if the exceptions are overruled, the report is then confirmed. The value being thus ascertained, a motion issues against the captor and against the sureties who had given bail to answer the appeal to the extent of their bond to bring in or pay over the value, within a time fixed within the discretion of the court. If any order made by the court upon the captors either with respect to bringing in the account of sales, if the claimant requires it, or with respect to bringing in the value however fixed, is not complied with, and no satisfactory reason for non-compliance is given, the court at the prayer of the claimant, issues an attachment against the other parties, which is executed by the claimant with such diligence as he can use, wherever the parties can be found, and by any person the claimant may entrust for that purpose, the usual and most advisable practice being to employ the officer of the admiralty within that jurisdiction, where the parties to be attached reside. "In the case of King's ships, the remedy goes no further than by attaching the commander and his sureties for answering the appeal. In the case of privateers it extends to the several owners, who are each bound to the 5627-22 of the American commissioners to accede to the determination of the majority of the members of the Board, and that no award has hitherto been made to any of His Majesty's subjects soliciting redress, under the said sixth article; it is His Majesty's pleasure that they decline attending the meetings of this Board, until they shall receive farther instructions upon the subject; at the same time they are especially instructed to accompany the communication of this intention on their part with an express declaration that the King is determined to fulfill with punctuality and good faith, the engagements which His Majesty has contracted by his treaty with the United States, and that whenever the obstacles which appear at present to impede the progress of the Commission at Philadelphia shall be removed, they will be instructed to resume their functions." full extent of the value decreed to be restored, and to the general securities given at the time of obtaining letters of marque to the extent of their bond; against whom a monition may be obtained as soon as an attachment is issued against the captor and his sureties on the appeal, without the necessity of proceeding to serve that attachment on either of them. If this latter monition is not obeyed, an attachment may issue in like manner against them. These attachments being in force, the course of legal remedy is terminated. "An exception to this mode of proceeding takes place where the property has been sold, upon each party refusing to take it upon bail pursuant to the provisions of the prize act, in which case the moneys arising from the sale are ordered to be brought into court, and deposited by the registrar in the Bank of England, or in some public securities at interest, and the net proceeds of such sale are to be taken as the full value. A monition would issue against the persons in whose names the moneys were deposited to bring them into court, or to pay them over to the claimant. "If the claimant has suffered the regular time of distribution to pass without proceeding in his appeal, and distribution has actually taken place, the claimant is barred his regal remedy, otherwise a premature distribution will not protect the captor against the demand of the claimant. "In case an inhibition be returned unserved, the captor being dead, a new inhibition must be taken out against his representatives to the effect of the former. If that inhibition be returned with a certificate that no representatives are to be found, proceedings may then be had against the owners of the privateer and the sureties to answer the appeal, but in the case of King's ships against the sureties only. We have omitted to mention that if the proceeds can be shown to be in the possession of any agent or other person whatever, a monition may be obtained against such person to bring the proceeds into court. "Commons, June 28th, 1798." "W. SCOTT. "J. NICHOLL. A consideration of this paper, in connection with the instructions given to the British commissioners for the government of their conduct at the board, will disclose the substantial character of the relief afforded by the action of the British Government. Resumption in 1802. Though the statement in the foregoing paper that no award had been made to any claimant under Article VI. of the treaty was not entirely accurate, it is true that the board had been broken up in the manner described, and that the result of the interruption was substantially such as was declared. The retaliatory suspension of proceedings under Article VII. continued for more than two years and a half.1 On the 8th of January 1802 however Lord Hawkesbury and Mr. King concluded a convention by which the claims under Article VI. were settled for the sum of £600,000, and the article itself, except so far as it defined the course of procedure under Article VII., annulled. It was also provided that the commissioners under the latter article should, immediately after the signature of the convention, "reassemble and proceed in the execution of their duties according to the provisions of the said seventh article, except only that, instead of the sums awarded by the said Commissioners being made payable at the time or times by them appointed, all sums of money by them awarded to be paid to American or British claimants, according to the provisions of the said seventh article, shall be made payable in three equal instalments, the first whereof to be paid at the expiration of one year, the second at the expiration of two years, and the third and last at the expiration of three years next after the exchange of the ratifications of this convention." These terms of payment were the same as those prescribed in respect of the indemnity of £600,000 for the claims under Article VI. The ratifications of the convention were exchanged at London on July 15, 1802, but in accordance with its requirements the commissioners under Article VII. reassembled on Monday, the 15th of the preceding February, and proceeded in the execution of their duties.2 Allowance of Soon after the commissioners reassembled a question arose as to the allowance of interest on claims during the period of the suspension. It was finally resolved on the 30th of April, by the concurring "We have been stopped by the difficulties that have occurred under the 6th article of the treaty, and not by anything depending on ourselves, or connected with our own duties. The commission in America has been wretchedly bungled. I am entirely convinced that with discretion and moderation a better result might have been obtained." (Wm. Pinkney to J. Pinkney, August 27, 1800, Pinkney's Life of Pinkney, 37.) 2 Messrs. Gore and Pinkney to the Sec. of State, February 17, 1802, (MSS. Dept. of State.) |