votes of the two American commissioners and the fifth commissioner, that interest should be allowed for the whole period from the time the claim arose to the date of the award. A motion to this effect was made by Mr. Gore on the 16th of April, and was supported by Mr. Pinkney in a forcible opinion which is printed in the digest. The view stated by the British commissioners was that, as the treaty of 1794 did not contemplate the interruption of the proceedings, it did not intend to authorize the allowance of interest during such interruption; and, moreover, that such an allowance of interest was not provided for in the convention under which the board reassembled.

Illegality of Provision Orders.

Among the questions determined by the board, none was more elaborately argued than that of the legality of the orders in council which directed the stopping and detention of all vessels laden wholly or in part with provisions and bound to any port in France, and the sending of them to such ports as might be most convenient, in order that such articles might be pur chased in behalf of the British Government. An excellent summary of the contentions on this subject, of the grounds on which the legality of the order was maintained on the one hand, and its illegality pronounced by the board on the other, is given by Wheaton in his Elements of International Law.'

The first ground on which the orders were justified was that at the time of their issuance and enforcement there was such a prospect of reducing the enemy by famine as made provisions bound to his ports so far contraband as to justify their seizure and appropriation by Great Britain, that government paying the invoice price, a reasonable mercantile profit thereon, and freight and demurrage. There was, so it was argued, support for this view not only in the works of publicists, but also in that stipulation of Article XVIII. of the treaty of 1794, which, after reciting that there was "difficulty" in "agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such," required that "whenever any such articles, so becoming contraband according to the existing law of nations," should for that reason be seized, they should not be confiscated, but should be paid for, and that the captors, or, in their default, the government

1 Lawrence's edition, 1855, pp. 555-561,

under whose authority they acted, should pay the masters or owners of the vessels "the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage" incident to the detention. To this argument reply was made that the stipulation of Article XVIII., since it referred to "the existing law of nations" as the criterion, did not effect any alteration in the rules which previously governed the subject; and that, according to those rules, the prospect of reducing the enemy by famine must be actual and immediate, as in the siege, blockade, or investment of particular places, and not vague and impalpable. In the case before the board there was no such prospect. While the enforcement of the order was productive of inconvenience to the enemy, there was no possibility of producing an actual famine by it.

The second ground assumed in support of the orders was that they were necessary to Great Britain, which was at the time threatened with a scarcity of provisions. To this assumption answer was made that the necessity which would warrant such a method of supplying a nation's wants must be real and imminent, and without other means of relief; that the offer of better prices in English than in French ports would have attracted importations; and that in reality after the orders were carried into effect an offer by the British Government of a bounty on imported articles soon caused the market to be overstocked. With such arguments the contention that provisions had properly been treated as contraband was met and overcome. The opinions of Messrs. Gore, Pinkney, and Trumbull in the case of the Neptune, printed in the digest, will more fully disclose the various grounds on which the orders were determined to be illegal. The proceedings of the board were brought Close of Proceedings. to a close on the 24th of February 1804, all the business before it having been completed.' The amount and progress of the business before it at various stages of its existence are disclosed by reports made at the periods of its suspension and conclusion.

Amount of Business
Transacted.

When its proceedings were interrupted in June 1798 by the controversy touching the disposition to be made of cases still pending in the courts, the awards against Great Britain made and

Messrs. Gore and Pinkney to Mr. Madison, Sec. of State, February 24, 1804. (MSS. Dept. of State.)

completed by the board, and payable on the 5th of that month, amounted to £34,516 16s. 24d., while the claims disposed of outside by Sir William Scott and Dr. Nicholl, in 39 cases for costs and damages, amounted, with interest to the 5th of June, to £24,659 7s. 1d. During the same period the records disclose awards on British claims against the United States to the amount of $33,590.60. Congress on January 15, 1798, appropriated $52,000 to pay awards of the commission.

When the proceedings of the board were suspended in July 1799 in consequence of the disruption of the commission at Philadelphia, the whole amount of the business then transacted, as shown by a statement made November 16, 1799, by Mr. Trumbull to Mr. King, was as follows:2

The amount of the awards against the United States was given by the American commissioners as $33,594.64.

The awards against Great Britain after the reassembling of the board in February 1802 amounted to £1,225,901 14s. 10d.3 By the manuscript reports of Messrs. Gore and Pinkney it appears that from the time of reassembling to July 15, 1803, 467 such awards were made in 300 cases, the awards amounting to £1,083,990 3s. 8d. Between July 15 and August 19, 1803,

23

Mr. Cabot to Mr. Pickering, Sec. of State, July 28, 1798. (MSS. Dept. of State.)

2 Trumbull's Autobiography, 263.

3 By an act of February 10, 1811 (2 Stats. at L. 647), Congress appropriated $22,392.67 to compensate Mr. Erving for the receipt and payment of awards made in favor of American citizens while he was agent, at the rate of 24 per cent on the amount of the awards actually received by him.

awards were made, amounting to £89,341 4s. 3d. Subsequently 22 awards were made (in 22 cases), amounting to £51,669 16s. 11d. In all, between February 1802 and the final adjournment, 512 awards were made in favor of American claimants.

It has been seen that the awards in favor of British claimants prior to the suspension of the board in 1799 amounted to $33,594.64. After the reassembling of the board in 1802 seven awards were made against the United States, amounting to $109,833.50. Of these awards, 1 was made prior to July 15, 1803; 2 between that date and August 22, and 4 subsequently. Thus the total amount of the awards against the United States, before and after the suspension of the proceedings of the board, appears to have been $143,428.14.

By an act of November 16, 1803, a sum not to exceed $50,000 was appropriated to carry into effect Article VII., and the accounting officers of the Treasury were authorized to allow interest, not exceeding 6 per cent, on one-third part of the amount of any award made in pursuance of the article and presented to the Treasury prior to the passage of the act, to be calculated from the time when the award should have been presented. By an act of November 24, 1804, a sum not to exceed $70,000 was appropriated, generally, to carry the article into effect.3

Statement of Mr.
Cabot.

Mr. Trumbull states that in a copy of the second volume of the Opinions of the Commissioners, which was in his possession, there was

the following entry:*

"Mr. Samuel Cabot, who was one of the assessors of the board, and who, from his other relations to the claims of American citizens for compensation, on account of captures by British cruisers, previous to the treaty of 1794, had an intimate knowledge of all that was claimed and paid, states that the amount awarded by the board, and paid by the British government to have been in pounds sterling

£1, 350, 000

By an act of March 3, 1801 (2 Stats. at L. 202), Congress appropriated $58,864, in general terms, to carry the treaty into effect.

22 Stats. at L. 248.

32 Stats. at L. 307. In an opinion of December 24, 1804, the AttorneyGeneral of the United States advised, in the case of an award against the United States, that the government had only to see that the money was paid to the persons in whose favor it was awarded, and that for the adjustment of contested interests the parties must resort to the courts. (1 Op. 153.) Autobiography, 237,

"Amounts recovered from the captors, on what were called Martinique cases, meaning captures in the West Indies

"Amounts produced to claimants from other cases of restitution....

"That the vessels captured, under what were called 'Provision Orders,' viz-orders to capture vessels bound to France, and laden with provisions, were in number one hundred and twenty, and that there must have been received from the British government, at least £6,000 each...

"Amount in dollars, allowing five dollars to the pound sterling..

Results of Commission.

£100,000

160,000

720,000

£2, 330,000"

$11, 650, 000

"This was," says Mr. Trumbull, "the statement of Mr. Cabot, whose accuracy and knowledge of the subject were beyond all doubt. From the foregoing statement it appears, that the large sum of eleven million six hundred and fifty thousand dollars was recovered by American citizens from the hands of British captors, by, or in consequence of, the abused treaty of 1794, negotiated by Mr. Jay. The whole of this sum was promptly and punctually paid to each complainant, or his assignee; for, after a careful and accurate examination of the merits of every case of complaint, the awards of the board were made in favor of each individual, in the form of an order to pay, and payable at the treasury of Great Britain; nor do I recollect even to have heard a single complaint, of the delay of an hour, in any instance of an award presented for payment."1

Expenses.

The compensation allowed to the American commissioners in London was $6,667.50 a year.2 Appropriations were duly made for the compensation of the American commissioners and half the compensation of the fifth commissioner, for the salaries of the assessor and agents on the part of the United States, and for clerk hire and contingent expenses. Large sums were expended in obtaining evidence in the West Indies. It was estimated that the expenses of the United States under and in connection with

Autobiography, 239.

Act of May 6, 1796. (1 Stats. at L. 460.)