In conclusion, the undersigned would observe that, as the time during which the commission is to sit is limited, they should esteem your early answer a personal favor, inasmuch as, in the event of your refusal, (a contingency which they trust will not arise,) a new appointment, or the adoption of the alternative pointed out in the convention, for many obvious reasons highly undesirable in itself, will become necessary. The undersigned are, with the highest consideration and respect, your obedient servants, N. G. UPHAM, American Commissioner. EDMUND HORNBY, Her Majesty's Commissioner. JOSHUA BATES, Esq. Letter from Joshua Bates, Esq., to the commissioners, accepting the appointment of Umpire. LONDON, 8 BISHOPSGATE STREET WITHIN, GENTLEMEN: I have received the letter which you have done me the honor to address to me, under yesterday's date, by which, in virtue of the power conveyed by the convention between Great Britain and the United States, signed at London, the 8th of February, 1853, you have appointed me to act as arbitrator or umpire in case you should not be able to agree in the settlement of any claim or claims embraced in that convention or treaty; and I have the honor to inform you that I accept the appointment, and am ready to make the required declaration whenever it may suit you to appoint a day for that purpose. I have the honor to be, gentlemen, your obedient servant, JOSHUA BATES. N. G. UPHAM, Commissioner of the United States. EDMUND HORNBY, Commissioner of Great Britain, No. 9 Lancaster Place, Strand. Letter from the commissioners to his excellency James Buchanan, United States minister to Great Britain, proposing an extension of the term of the commission; a counterpart of which letter was also addressed to the Earl of Clarendon, her Majesty's Secretary of State for Foreign Affairs. OFFICE OF THE COMMISSION OF CLAIMS, SIR: As commissioners under the convention of February, 1853, for settling outstanding claims between Great Britain and the United States, we have the honor to address your excellency in reference to the duration of the commission. By that convention the commissioners are bound to "examine and decide upon every claim that may be preferred or laid before them within one year from the day of their first meeting," and it is further stipulated that the claimants shall have six months, and under some circumstances nine months, from that day, within which to present their claims. The commissioners met on the 15th of September last, and the effect of the time granted by the convention to the claimants, within which to present their claims, has been practically, in a great majority of cases, to postpone such presentment to the last moment; and in some cases the claimants have been unable as yet to complete and present their testimony. Under these circumstances, the year within which the commissioners are to decide upon the claims is practically reduced to a few months, and as it may be necessary to call in the assistance of the umpire in some of the cases, (a necessity which the commissioners trust will not often arise,) they feel that it will be impossible for the umpire to devote the necessary time to such referred claims prior to the close of the commission. By the provisions of the convention all claims arising since 1814, not presented to the commissioners and allowed by them, are to be finally barred. For this reason, the agents for the governments have adopted the course of presenting all claims on the files of either government since that time; and though very many of these claims are of a character that have not been urged by either government, and will be disallowed, yet they all require an examination and decision, while some of the claims in controversy involve principles requiring much labor and investigation. One hundred and twenty cases have been already presented, and amongst them are several claims made on behalf of a great number of individuals; so that, in fact, that number will be the least which the commissioners will be called upon to decide. In view, therefore, of the uncertainty of being able to complete the business of the commission within the time limited, and having regard in such case to the necessity of the contracting parties entering into a new treaty for the purpose of continuing the commission-a proceeding which will require the ratification of the Senate of the United States before the close of its present session-the commissioners respectfully submit to your consideration the expediency of extending the time for the close of the commission for some brief period; and would express their belief that an extension for the term of four months, from the 15th of September next, would be sufficient for this purpose. With this view, and in order more fully to express their meaning, the commissioners enclose a draft of such a convention as, in their judgment, would effect the object proposed; and they have forwarded a copy of the same to the Earl of Clarendon, her Majesty's secretary of state for foreign affairs, with a counterpart of this letter to your excellency, with an expression of a hope that it may be made, at an early day, a matter of conference between the two governments. With sentiments of the highest consideration and respect, we are your obedient servants, N. G. UPHAM, United States Commissioner. EDMUND HORNBY, To his Excellency JAMES BUCHANAN, British Commissioner. United States Minister to Great Britain, &c., &c., &c. In pursuance of the foregoing recommendation, a convention was entered into between the two governments for an extension of the term of the commission agreeably to the draft proposed, which was signed at Washington, July 17, 1854, and ratifications were exchanged at London, August 18, 1854, of which due notice was communicated to the commissioners. A copy of said convention will be found in the journal of the commissioners, page 37. COPY OF MR. HANNEN'S PROTEST IN THE CLAIM OF WILLIAM COOK AND OTHERS. To the honorable the Commissioners under the Convention of February 8, 1853, between her Britannic Majesty and the United States of America, for the settlement of outstanding claims: GENTLEMEN: A claim has been presented in behalf of William Cook and others, natives of the United States, asserting themselves to be the next of kin of one Frances Mary Shard, widow, who died intestate in 1819, and of whose effects administration was afterwards granted to George Maule, esq., as nominee of the crown. The claim is presented to the commissioners, under the convention of February 8, 1853, on the assumption that the proceeds of the effects of the intestate are "now in the custody of her Majesty's government," and that, therefore, this is a claim "by citizens of the United States, upon the government of her Britannic Majesty," within the meaning of the convention. I have the honor to submit, in behalf of her Majesty's government, that the claim of William Cook and others is not one of the class for the settlement of which the convention was entered into, and that it is not within the jurisdiction of the honorable commissioners appointed under that convention. It is believed that the following brief statement of the law of this country, on the subject of the administration of the effects of intestates, whose next of kin cannot be discovered, will fully establish the foregoing propositions. Upon the death of a person intestate, administration of his personal effects is granted by the ordinary to the next of kin, in whom, upon such appointment, the property in the effects is completely vested. If no next of kin can be discovered, administration is granted to a nominee of the crown as ultimus hæres, and in such nominee the property of the intestate is vested in the same way as in an ordinary administrator. The crown would, through its nominee, be at liberty to dispose of the intestate's property for its own private purposes, and in some cases does so, but in general the effects of the intestate are, with the exception of a small per centage, distributed amongst such persons as show, to the satisfaction of the crown, that they had some claim upon the deceased person, and would probably have been objects of his bounty had he made a will. Bonds are, however, taken from these persons to restore the amounts received by them, should the letters of administration granted to the nominee of the crown be afterwards revoked, by reason of the discovery of the next of kin. In the event of such a discovery being made, the course pointed out by law for the person claiming to be next of kin to pursue, is by citation in the ecclesiastical court, to procure the letters of administration already granted to be revoked, and fresh letters to be granted to the person establishing his claim as next of kin. In illustration of this statement, the case of Rutherford vs. Maule, Haggard's Ecclesiastical Reports, may be referred to, in which the administration of this intestate's effects was the subject of litigation Rutherford asserting himself to be the next of kin of Mrs. Shard, and seeking the revocation of the letters granted to the nominee of the crown. Under these circumstances, I submit that the claim of William Cook and others is not a claim "by citizens of the United States upon the government of her Britannic Majesty," within the meaning of the first article of the convention, since the government has no control over or interest in the subject-matter of dispute. The claim is between. the alleged next of kin and the nominee of the crown, representing the sovereign in his personal capacity, and is as much a private litigation as if the letters of administration sought to be revoked had been granted to a private individual. It is also to be observed, that the ecclesiastical courts are the tribunals which have jurisdiction in such matters, to the exclusion of all other courts in this country; that they have a system of practice adapted to this subject, and means of obtaining evidence, which the commissioners appointed under the convention do not possess. The object of the convention appears to have been to erect a tribunal to determine disputes, for the decision of which no competent court existed. It cannot have been intended to oust the ordinary courts of law of either country of their jurisdiction, and to transfer cases peculiarly within their province to a court of exceptional character, and provided with very limited means of investigation. For these reasons I submit, that the claim of William Cook and others is not within the jurisdiction of the honorable commissioners, and should not be entertained by them. I have thought it right at once to present these observations, in order that the parties interested may be informed as soon as possible of the objection which exists to the prosecution of their claim before the commission, that they may be enabled to take such other proceedings as they may be advised. In the event of the claim being persisted in, I shall crave leave to address some further observations in support of the view I now have the honor of submitting to your attention. I am, gentlemen, your obedient servant, JAMES HANNEN. |