compensation to the said creditors;" but it also distinctly declared that this stipulation "is to extend to such losses only as have been occasioned by the lawful impediments aforesaid, and it is not to extend to losses occasioned by such insolvency of the debtors or other causes as would equally have operated to produce such loss, if the said impediments had not existed; nor to such losses or damages as have been occasioned by the manifest delay or negligence or wilful omission of the claimant."

Provision for Mixed
Commission.

"For the purpose of ascertaining the amount of any such losses and damages," the article further provided that five commissioners should be appointed, two by His Majesty, two by the President of the United States, by and with the advice and consent of the Senate thereof, and the fifth "by the unanimous voice of the other four"; but in case they should not agree, the commissioners on each side were to propose one person, and, of the two so proposed, one was to be drawn by lot in the presence of the four original commissioners; and each of the five was required to take an oath or affirmation in a prescribed form.

sioners.

It was further provided that the commisPowers of Commissioners should first meet in Philadelphia, but should have power to adjourn from place to place as they should see cause; that three of them should constitute a board and "have power to do any act pertaining to the said commission, provided that one of the commisioners named on each side, and the fifth commissioner shall be present;" and it was stipulated that all decisions should be made "by the majority of the voices of the Commissioners then present." Eighteen months from the day on which the commissioners should form a board and be ready to proceed to business were assigned for receiving complaints and applications; but the commissioners were authorized in any particular case in which it should appear to be reasonable and just to extend the term for not more than six months. In "examining the complaints and applications so preferred to them," the commissioners were "empowered and required * to take into their consideration all claims, whether of principal or interest, or balances of principal and interest, and to deter mine the same respectively, according to the merits of the several cases, due regard being had to all the circumstances

Finality and Payment of Awards.

thereof, and as justice and equity shall appear to them to require." They were also empowered to examine such persons as should come before them, on oath or affirmation, and to receive in evidence, when duly authenticated, "all written depositions, or books, or papers, or copies, or extracts thereof.”1 It was further provided that "the award of the said commissioners, or of any three of them as aforesaid," should "in all cases be final and conclusive, both as to the justice of the claim, and to the amount of the sum to be paid to the creditor or claimant;" and that the United States should cause the sum so awarded to be paid in specie to the claimant without deduction, at such time or place as the commissioners should award, and on condition of such releases or assignments by the claimant as the commissioners should direct, provided that no such payment should be fixed by the commmissioners to take place before twelve months from the day of the exchange of the ratifications of the treaty.

Expenses and Vacancies.

By the eighth article of the treaty it was provided that the commissioners should be respectively paid in such manner as the high contracting parties should, before the exchange of the ratifications of the treaty, agree on; that all other expenses should be jointly defrayed, and that in case of the death, sickness, or necessary absence of any commissioner his place should be filled in the same manner as that in which he was appointed.

Legislation of Congress.

The ratifications of the treaty were exchanged at London on the 28th of October 1795, and it was proclaimed on the 29th of the ensuing February. By an act of May 6, 1796, Congress made an appropriation toward defraying the expenses of carrying the treaty into effect, and fixed the salary of the American commissioners under Article VI. at $4,445.2 By another act, of June 30, 1797,3 the President was authorized, by and with the

The Attorney-General of the United States advised that this stipulation touching the examination of witnesses and the admission of evidence implied "that public officers should furnish copies of papers when demanded, and should assist in bringing forward testimony according to the duties of their several stations; and, also, that individuals should not refuse to give testimony" to facilitate the execution of the article. (Charles Lee, Attorney-General, to the President, January 3, 1798, 1 Op.82. ) 21 Stats. at L. 460.

31 Stats. at L. 523.

advice and consent of the Senate, to appoint an agent, who was to be entitled "to a compensation at the rate of two thousand dollars per annum," "to act in behalf of the United States, under the direction of the Attorney-General," and it was made "the duty of the Attorney-General to counsel such agent, and to attend before said commissioners [under Article VI.], whenever any questions of law, or fact, to be determined by them, shall render his assistance necessary." Moreover, the Attor ney-General was "authorized to employ such agents, in different parts of the United States, as the business before the said commissioners, in his opinion, shall make necessary, to be paid according to their services, at such rate as the President of the United States shall direct." For his own services under the act the Attorney-General was allowed "an additional compensation of six hundred dollars per annum."

American Commis

sioners.

The commissioners appointed on the part of the United States were Thomas Fitzsimons, of Pennsylvania, and James Innes, of Virginia. Their joint commission, issued by and with the advice and consent of the Senate, bears date April 1, 1796. Mr. Innes died on the 2d of August 1798 and was succeeded by Samuel Sitgreaves, of Pennsylvania, who was appointed on the 11th of that month and took his seat at the board on the 28th.'

British Commissioners.

The British commissioners, whose joint appointment bore date September 7, 1795, were Thomas Macdonald and Henry Pye Rich.

*

Mr. Macdonald, one of the British commissioners, referring to Mr. Innes, after the latter's death, said: "Colonel Innes, than whom a man more truly honorable never existed; who enjoyed the cordial friendship of General Washington; had resigned the situation of attorney-general of the State to which he belonged to hold a place in the commission; and was distinguished as much for that frankness of mind which disdained all finesse, as for a manly eloquence and correct judgment." (A Brief Statement of Opinions Given in the Board of Commissioners, under the Sixth Article of the Treaty of Amity, Commerce, and Navigation, with Great Britain, by One of the Commissioners. Philadelphia, 1800, p. 10.) Mr. Sitgreaves was born in Philadelphia in 1764; settled in Easton, Pa., in 1786, and died there in 1824. A lawyer by profession, he was a member of the constitutional convention of Pennsylvania in 1789-90; served in Congress from 1794 to 1796; in 1797 conducted the impeachment of William Blount; in 1799 assisted in the prosecution of John Fries for treason. (Wharton's State Trials, 206, 484, 491, 557, 577.) At the close of John Adams's administration he retired from public

Choice of Fifth Commissioner.

Though complaints were afterward made of Mr. Macdonald's domineering temper, he came well recommended for amiability.' The four original commissioners first met at the house of Mr. Fitzsimons, in Philadelphia, on the 18th of May 1797, and after communicating to each other their commissions, which were found to be in due form, adjourned to meet on the 25th of May for the purpose of selecting a fifth commissioner. Finding on that day that they could not agree in the choice of a person to fill the position, "the said commissioners appointed by His Britannic Majesty," so reads the record, "did propose, John Guillemard, esquire, of London, at present in Philadelphia, and the said commissioners appointed by the President of the United States, as aforesaid, did propose Fisher Ames, esquire, of Massachusetts, and the said Henry Pye Rich, and James Innes, having retired into another room, the said Thomas Macdonald, and Thomas Fitzsimons, wrote down the names of the said two persons so proposed, on separate slips of paper, which being rolled up, and placed in an urn, were carried in the same, by the said Thomas Macdonald, and Thomas Fitzsimons, into the presence of the said other two commissioners; and the urn being there delivered to the said James Innes, was by him presented to the said Henry Pye Rich, who, in the presence of the said other commissioners, drew from the same, the name of the said John Guillemard, who was declared the fifth commissioner, under the said article of the said Treaty.-These things were so done at Philadelphia, and in the house of the said Thomas Fitzsimons, this twenty-fifth day of May, One thousand seven hundred and ninety-seven."2

Agents and Secretary.

Each party was represented by an agent, the American agent being John Read, jr.; the British agent, William Moore Smith. The secretary of the commission was G. Evans.

"Mr. Macdonald, who is just on the point of sailing for America, I am acquainted with. If you should meet him, I need not ask you to attend to him when I inform you that he is an amiable, well-informed gentleman, and carries with him the best disposition towards our country." (William Pinkney to W. Vans Murray, London, February 9, 1797, Pinkney's Life of Pinkney, 29.)

2 The four original commissioners, in thus determining who should be the fifth commissioner, followed the plan which had, as we shall see, been adopted by the commissioners under the seventh article at London, each side presenting a list of names, and then proposing the name which the other side selected from it.

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 administra

tion 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, Congress created a fund for the payment of awards by appropriating $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 prac tice. 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.