nevertheless," said Lord Grenville, "been faithfully executed by the British Government. The temporary difficulties which arose in the execution of that commission led immediately to amicable explanation between His Majesty's Government and the minister of the United States ; and considera

ble sums have actually been paid to American claimants in cases where the award of the commissioners has rested on doctrines which are decidedly held to be erroneous, and which would not, therefore, have been recognized in any transaction with a foreign state. In America, a contrary course has been pursued. The two commissioners nominated on the part of the United States to the commission under the sixth article have finally claimed the right to invalidate, by their dissent, both the principles and the effect of the decisions of the majority, and have at length, by completely withdrawing from the board, endeavored as far as in them lay, to arrest all its proceedings. * * * It was neither required nor even imagined that the opinions of either commission could be unanimous on points on which the two Governments had found it impossible to agree. In both of them possible differences of opinion were foreseen, and they were provided for in both by the stipulation which gave full force and validity to the acts of the majority." The secession of the American commissioners made it the duty, he said, of the Government of the United States to appoint new ones.1

To the note of Lord Grenville, John MarMarshall's Reply. shall, who had succeeded Mr. Pinkering as Secretary of State, replied that the Government of the United States understood the treaty differently. The provision declaring the decision of the board to be in all cases final and conclusive was not understood to authorize "the arbiters to go out of the special cases described in the instrument creating and limiting their powers. The words 'all cases' only mean those cases which the two nations have submitted to reference. These are described in the preceding part of the article, and this description is relied on, by the United States, as constituting a boundary, within which alone the powers of the commissioners can be exercised. This boundary has, in our judgment, been so totally prostrated, that scarcely a trace of it remains." While admitting that the decision of a majority was binding by the very terms of the treaty, Marshall

1 Lord Grenville to Mr. King, April 19, 1800, Am. State Papers, For. Rel. II. 398.

declared that "it was not until a majority of the Board had proceeded to establish a system of rules for the government of their future decisions, which, in the opinion of this Government, clearly comprehended a vast mass of cases never submitted to their consideration, that it was deemed necessary to terminate proceedings believed to be totally unauthorized, and which were conducted in terms and in a spirit only calculated to destroy all harmony between the two nations." He therefore instructed Mr. King, if it should be found impossible to negoti ate a reasonable explanatory article, to endeavor to agree on a gross sum to be received as full compensation for all the claims of the creditors.1

Negotiations for Settlement.

At one time Lord Grenville thought of sending out "confidential characters" to America for the purpose of facilitating the execution of the treaty, with an eventual appointment as commissioners. He was not inclined either to negotiate a new convention or to discuss the question of a lump sum. He at length decided, however, very wisely, to try the latter alternative. In December 1800 Mr. King presented to him a paper in which it was estimated that the claims against the United States would not properly exceed £400,000. This result was arrived at by assuming that the amount of the debts due at the outbreak of the war was equal to the average amount of British exports to the colonies in one year prior to that event, which was estimated at £2,311,498. From this amount Mr. King deducted one-half on the score of what British creditors lost in consequence of the insolvency of debtors, caused by the war and especially by the operation of paper money, from the beginning to the end of the conflict. This left £1,155,749. As in the majority of States, including the large commercial towns, creditors had experienced no material difficulty in recovering their debts, it was reasonable, said Mr. King, to deduct half of that sum as recovered since the war, leaving £577,874 unrecovered. To this sum, however, he added interest, thus doubling it and restoring the amount due to £1,155,749. Of this he estimated that creditors could, in the existing unobstructed course of jus tice, recover two-thirds, leaving not more than £400,000 due from the United States.

Mr. Marshall to Mr. King, August 23, 1800, Am. State Papers, For. Rel. II. 383, 386, 387.

2 Am. State Papers, For. Rel. II. 390-400.

By an analytical statement of the claims submitted to the board in Philadelphia, it appears that their gross amount was £5,638,692 8s. 1d., which was calculated to be equivalent to $24,809,969.37. It was admitted, however, that, as always happens in such circumstances, the amounts of the several claims were in many instances enormously exaggerated, and the British Government offered to accept between a million and two million pounds. On the 15th of June 1800 Mr. Madison, who had become Secretary of State, instructed Mr. King that not more than £600,000 would be paid,' and, after long and complicated negotiations in which John Anstey assisted on the part of Great Britain,2 the British Government consented to accept that sum, if satisfactory terms could be arranged for its payment, and recourse to the courts be secured to creditors for the future.

Convention of January 8, 1802.

Various projects of a convention on thesé lines were exchanged, but it was not until January 8, 1802, that one was concluded. On that day Lord Hawkesbury and Mr. King signed a convention by which Article VI. of the treaty of 1794 was annulled, and the sum of £600,000, payable at Washington in three equal annual installments, and in money of the United States reckoned at $4.44 to the pound sterling, was accepted in satisfaction of what the United States might have been liable to pay under that article. This sum, amounting to $2,664,000 was duly appropriated and paid. The Secretary of the Treasury was authorized to cause the last installment to be paid in London.5 By Article II. of the convention, Article IV. of the treaty of peace, so far as respected its future operation, was confirmed, so that creditors on either side should in the future "meet with no lawful impediments to the recovery of the full value in sterling money of their bona fide debts."6

1 Am. State Papers, For. Rel. II. 389.

2 Am. State Papers, For. Rel. II. 401-418.

3 Am. State Papers, For. Rel. II. 421-427.

42 Stats. at L. 192; Am. State Papers, For. Rel. II. 62, 67.

5 Act of March 3, 1805, 2 Stats. at L. 336.

6 For appropriations to carry Article VI. of the treaty of 1794 into effect, see the following acts: May 6, 1796, $80,808 (for Articles VI. and VII.), 1 Stats. at L. 460; March 2, 1799, $26,000, Id. 723; May 7, 1800, $52,556, 2 Id. 66; April 18, 1806, $7,750, Id. 389.

CHAPTER X.

THE RIGHTS AND DUTIES OF NEUTRALS: COMMISSION UNDER ARTICLE VII. OF THE JAY

TREATY.

Belligerent Pretensions: French Decrees.

The first war between Great Britain and France growing out of the French Revolution was characterized, as were other great European struggles of the last and the beginning of the present century, by exorbitant pretensions on the part of the belligerent powers to regulate and control the trade of neutrals. By a decree of the National Convention of May 9, 1793, the commanders of French ships of war and privateers were "authorized to seize and carry into the ports of the republic, merchant vessels which are wholly or in part laden with provisions, being neutral property, bound to an enemy's port, or having on board merchandise belonging to an enemy." Merchandise belonging to the enemy was declared to be "lawful prize, seizable for the profit of the captor." Provisions, if belonging to a neutral, were to be "paid for at the price they would have sold for at the port whither they were bound;" the vessels, if neutral, were to be released as soon as the provisions found on board should have been landed, or the seizure of the merchandise effected; freight was in such case to be settled at the rate paid by the charterer, and proper compensation to be granted by the tribunals for the detention of the vessels. From this decree, however, the National Convention, hopefully looking to the United States as an "ally" in the war, by another decree of the 23d of May declared American vessels to be exempt. In communicating these decrees to the Government of the United States in September 1793 M. Genet, the French minister, declared that the considerations which prompted the second decree were, on the one hand, a disposition on the part of France scrupulously to observe the treaties with the United States, and on the other "the thorough confidence she has that

the Americans will not abuse this privilege by carrying to her enemies those productions by which they ought to assist in the defense of a cause as much their own as hers." At the same time he said he was "informed that the English Government have declared their determination to carry into the English ports all the American vessels laden with provisions for the ports of France." The French republic expected that the United States would "hasten to take the most energetic measures to procure a recall of this decision;" and if the measures taken to that end should prove to be "insufficient or fruitless," and the neutrality of the United States, as had previously been the case, "serviceable" only to "the enemies of France," France would "exercise a very natural right in taking measures to prevent a consequence so injurious to her."1

Order in Council,
June 8, 1793.

The determination of the British Government to which M. Genet referred was embodied in an order in council issued on the 8th of June 1793. By this order the commanders of His Majesty's ships of war and privateers were authorized "to stop and detain all vessels loaded wholly or in part with corn, flour, or meal, bound to any port in France, or any port occupied by the armies of France, in order that such corn, meal, or flour may be purchased on behalf of His Majesty's government, and the ships be released after such purchase and after a due allowance for freight," or in order that the masters of such ships might, on giving due security, "be permitted to dispose of their cargoes of corn, meal, or flour, in the ports of any country in amity with His Majesty.""

1 M. Genet to Mr. Jefferson, Sec. of State, September 27, 1793. (Am. State Papers, For. Rel. I. 243-244.)

2 The text of the order is as follows:

"GEORGE R. (L. S.)

"Additional instructions to the Commanders of His Majesty's Ships of War, and Privateers that have or may have Letters of Marque against France. Given at our Court at St. James's, the Eighth Day of June, 1793, in the Thirty-third Year of our Reign.

"I. That it shall be lawful to stop and detain all Ships loaden wholly or in part with Corn, Flour, or Meal, bound to any Port in France, or any Port occupied by the Armies of France, and to send them to such Ports as shall be most convenient, in order that such Corn, Meal, or Flour may be purchased on behalf of His Majesty's Government, and the Ships be released after such Purchase and after a due Allowance for Freight; or that the Masters of such Ships on giving due Security, to be approved of by the Court of Admiralty, be permitted to proceed to dispose of their Cargoes