5, 1793, a copy of which is annexed to this treaty; the complaints of the parties shall be and hereby are referred to the Commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as to the other cases committed to them."

Cases Included.

In respect of these claims, as of those arising under the orders in council, it was agreed that not only existing cases, but also all such as should exist at the time of the exchange of the ratifications of the treaty should be considered "as being within the provisions, intent and meaning of this article." The ratifications were exchanged October 28, 1795.1

Constitution of Commission.

For the purpose of ascertaining the amount of losses and damages to be estimated under the various engagements of Article VII., it was provided that five commissioners should "be appointed and authorized to act in London, exactly in the manner directed with respect to those mentioned in the preceding article;" that is to say, that two commissioners should be appointed by His Britannic Majesty, two by the President of the United States, by and with the advice and consent of the Senate, and the fifth by the unanimous voice of the other four; and in case they should be unable to agree, that the commissioners named by the two parties should respectively propose one person, and of the two proposed one should be drawn by lot in the presence of the four original commissioners.

Powers of Commission.

It was further provided that after the commissioners had taken the requisite oath or affirmation and were ready to proceed to busi ness, a period of eighteen months, which might in particular cases be extended not more than six months, should be allowed for receiving complaints and applications; that the commissioners should "receive testimony, books, papers and evidence in the same latitude, and exercise the like discretion and powers respecting that subject" as the commissioners under Article

1 Genet, in a letter to Jefferson of September 14, 1793, said that the privateers fitted out in the United States had "taken possession of" 50 vessels. (Am. State Papers, For. Rel. I. 184.) Hammond to Lord Grenville, November 5, 1794, said that, between the outbreak of hostilities and August 1, 1794, there were "brought into the ports of the United States" 76" British prizes," valued at £196,548, of which 46 were made by privateers fitted out in the United States. (British Counter Case and Papers, Geneva Arbitration, Am. reprint, 608. Tables of captures down to October 1796 are printed in this same volume, 609-621.)

VI.;' that they should "decide the claims in question according to the merits of the several cases, and to justice, equity and the law of nations;" that the "award of the said Commissioners, or any such three of them as aforesaid, shall in all cases be final and conclusive, both as to the justice of the claim, and the amount of the sum to be paid to the claimant;" and that the government against which the award should be rendered should cause it to be paid to the Payment of Awards. claimant in specie, without any deduction, at such place or places and at such time or times as should be awarded by the commissioners, and on condition of such releases or assignments to be given by the claimant as the commissioners might direct.

British Commission

ers.

American Commissioners. Christopher Gore.

On the part of Great Britain the original commissioners were John Nicholl, LL.D., an eminent civilian, who then shared with Sir William Scott the honors and practice of the admiralty courts, and John Anstey. In November 1798 Dr. Nicholl resigned to accept the post of King's Advocate before the High Court of Admiralty, and was succeeded by Maurice Swabey, LL. D., who took his seat at the board on the 5th of the same month.2 On the part of the United States the commissioners were Christopher Gore and William Pinkney. The former, who is popularly known as the legal preceptor of Daniel Webster, had already attained a foremost place at the Massachusetts bar. Born at Boston on the 21st of September 1758, he graduated at Harvard College in 1776, and subsequently entering upon the practice of the law in his native city soon acquired a lucra. tive practice. In 1789 he was appointed by Washington as the first district attorney of the United States for Massachusetts, and held that office until he was appointed in 1796 a commissioner under Article VII. He remained in London until 1804, when, having fulfilled his duties as commissioner and acted during the last year of his residence in London as chargé d'affaires of the United States, he returned to Boston. In 1809 he became governor of Massachusetts, and held the office

1 Article VI., to which reference is here made, stipulated that three commissioners should constitute a board, and have power to do any act pertaining to the commission, provided that one of the commissioners named on each side and the fifth commissioner should be present.

* Messrs. Gore and Pinkney to Mr. Pickering, Sec. of State, November 5, 1798. (MSS. Dept. of State.) See Southern Law Rev., O. S., III. 3.

for a year. Subsequently he served in both branches of the State legislature, and in 1813 was elected in place of James Lloyd to the Senate of the United States, where he remained until 1816.1

But of all the members of the board Mr. William Pinkney. Pinkney was in many respects the most interesting. Never a seeker after preferment, he was continually chosen, either by the suffrages of his fellowcitizens or by executive favor, to positions of public trust and responsibility, which he filled with distinction to himself and advantage to his country. Born at Annapolis, Maryland, on the 17th of March 1764, and educated at King William School in that city, he entered upon the study of medicine, but finding it uncongenial soon abandoned it for that of the law. In 1788, two years after his admission to the bar, he was elected a delegate to the convention of Maryland which ratified the Constitution of the United States. In October of the same year he was elected to the Maryland house of delegates, and in 1790 to the House of Representatives of the United States, a position which he subsequently declined for private reasons. In 1792 he was chosen a member of the executive council of Maryland, and for a time was president of that body. In 1805, the year after his return as commissioner from London, he was appointed attorney general of Maryland. In the following year he was selected by President Jefferson to assist Mr. Monroe in his negotiations at London, and after the termination of their joint mission remained as the minister of the United States until 1811. Returning to the United States in June of that year, in the ensuing September he was elected to the senate of Maryland and retained that post until the following December, when he was appointed by President Madison Attorney-General of the United States; but the passage of a law requiring the Attorney-General to reside at the seat of government soon compelled him to relinquish the office. In the war of 1812 he raised a company at Baltimore for local defense, and was severely wounded at the battle of Bladensburg. In 1815 he was elected a Representative in Congress from the city of Baltimore, but in the following year was appointed by President Monroe as minister plenipotentiary to Russia, and as special minister to the Court of Naples to obtain

1 Cyclopædia of American Biography.

indemnity for the illegal seizure and confiscation of property of American citizens by the government of Murat. In 1818 he voluntarily returned to the United States, and in the following year he was elected from Maryland to the Senate of the United States, in which he took his seat January 4, 1820. He died at Washington February 25, 1822, the fatal attack being induced by overexertion in the argument of a cause before the Supreme Court of the United States.

From this brief outline of Mr. Pinkney's public services it is evident that his preeminent success at the bar can be accounted for only by the fact that to natural abilities of a high order he united an ardent and unremitting diligence in the study of his profession. His early education being deficient as compared with that of some of the public characters with whom he was thrown in contact on his arrival in London, he employed an instructor and applied himself with assiduity to scholastic studies, especially Latin, English literature, and rhetoric. At the same time he steadily pursued the study of the law, being constant in his attendance upon the courts, and took lessons in oratory at the sessions of the House of Commons. Perhaps no stronger tribute ever was paid to his eloquence and skill as an advocate than that which was uttered by Chief Justice Marshall in a formal opinion of the Supreme Court: "With a pencil dipped in the most vivid colors," said that great judge, referring to an argument of Mr. Pinkney's, "and guided by the hand of a master, a splendid portrait has been drawn, exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials, of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance."1

The opinions delivered by Mr. Pinkney as a member of the board of commissioners under Article VII. of the treaty of 1794 are worthy of his reputation. They are, as Mr. Wheaton said, "finished models of judicial eloquence, uniting powerful and comprehensive argument with a copious, pure, and energetic diction." Especial mention may be made of his opinion in the case of the Betsey, Furlong, master, on the question of the

1 The Nereide, 9 Cranch, 388, 430.

2 Life of Pinkney, 26.

finality of the judgments of prize courts, and of that in the case of the Neptune, Jeffries, master, a provision case involving the question of contraband.

First Meeting of Commissioners.

Mr. Gore landed at Dover June 21, 1796, and arrived in London on the following day. On the 23d he called on Mr. Pinkney, who had preceded him, and on the 30th of June was presented by the latter to Lord Grenville, with whom he left a copy of his commission. The first meeting of the American and British commissioners, for the purpose of adjusting the preliminaries of their task, was held on the 16th of August 1796 at the house of Dr. Nicholl, in Lincoln's Inn Fields, London.

Choice of Fifth Commissioner.

On the 18th of August the commissioners met at the same place for the purpose of choosing a fifth commissioner. For this office the commissioners on each side desired the selection of one of their own countrymen, and to this end the American commissioners mentioned Mr. Starke, "a gentleman of the law from Virginia;" Mr. I. C. Fisher, a merchant of Philadelphia; Mr. Tudor, of Boston, and Col. John Trumbull, of Connecticut. The British commissioners also presented a list of four names, among which were those of Drs. Swabey, Arnold, and Lawrence, all eminent civilians. But, as neither side would yield to the other, it was found necessary to resort to the alternative mode of choosing by lot. The disadvantage which usually attends this method is that each side names one of its partisans, so that the commissioner chosen by lot for the purpose of casting the decisive vote is likely to be less fair and judicial than any of his associates. The commissioners under Article VII. sought to avoid this difficulty by arranging that, for the purposes of the lottery, each side should propose a name from the list which the other had prepared with a view to a common agreement. In execution of this plan the American commissioners chose from the British list the name of Dr. Swabey, while the British commissioners selected from the American list the name of Colonel Trumbull. These names, having been written on ballots by Mr. Gore and Dr. Nicholl, were deposited in an urn, which was taken into another room to Dr. Anstey and Mr. Pinkney, and the urn being presented by Dr. Nicholl to Mr. Pinkney, the latter drew out the name of Colonel Trumbull.'

1 Messrs. Gore and Pinkney to Mr. Pickering, Sec. of State, August 27, 1796. (MSS. Dept. of State.)