their inquiry, they claimed "the essential immunities attached to public ministers," and requested him to ascertain the opinion of the government on the subject.' Mr. King inclosed a copy of the letter to Lord Grenville, saying that, though nothing explicit in relation to the privileges and exemptions of the commissioners had been settled between the two countries, he had reason to believe that it would "correspond with the opinion and practice of the Government of the United States, that the persons acting as commissioners under the late treaty should be exempt from those taxes and personal services of various kinds to which the citizen subjects of the respective countries are liable." He requested Lord Grenville's opinion on the subject.2 Some time after this note was addressed to his lordship Mr. Hammond, then under secretary, showed Mr. King an opinion of the law officers of the Crown, to whom his note and the letter of Messrs. Gore and Pinkney were referred, adverse to the commissioners' claim of privilege; and on the envelope inclosing the opinion there was an indorsement by Lord Grenville intimating that it might be advisable not to pursue the question further. Mr. King however asked for an answer to his note, and on January 20, 1797, received in reply the opinion of the law officers, who at this time were Sir William Scott, afterward Lord Stowell, John Scott, afterward Lord Eldon, and John Mitford, afterward Lord Redesdale. Their opinion bore date December 22, 1796. Adverting to the fact that in the The letter was as follows: "SIR: Since our arrival in this country, applications have been made to us, for imposts and duties incompatible with the exemptions, to which we consider ourselves entitled by our official character. "Without any particular observations, your own mind will be apprized of the reasons, which led us to expect the essential immunities attached to public Ministers; and which, we can not but believe, will be satisfactory to the British Ministry, if any doubt is entertained by them. "A circumstance has recently occurred that renders it necessary as well as prudent, that we should know the immunities & exemptions which we may justly claim. We shall therefore, Sir, be much obliged, if you will take an early opportunity of ascertaining the opinion of this Government on the subject. "We are, Sir, "The Hon. Rufus King, &c., &c., &c." "C. GORE, "WM. PINKNEY. 2 Mr. King to Lord Grenville, November 29, 1796, MSS. Dept. of State. letter of Messrs. Gore and Pinkney the character of the applications to them for imposts and duties was not specified, but were merely represented as incompatible with the exemptions to which they considered themselves entitled by their official character, they said: "We apprehend Messrs. Gore and Pinkney have no letters of credence to his Majesty, and have not been received by his Majesty with the formalities usually practiced in the reception of foreign public ministers, but are in the character of American citizens, resident in this country, under the protection of the American Minister, tho' invested by the United States with the character of Commissioners for a special purpose, under the stipulations of the late treaty between the two countries, authorizing a Commission of five persons of whom Mr. Gore & Mr. Pinkney are two. "The act of the 7 Anne 12 for preserving the privileges of ambassadors & other public ministers of foreign princes and states,' applies only to ambassadors or other public ministers of any foreign prince or state authorized, & received as such by his Majesty, and we apprehend that as Mr. Gore & Mr. Pinkney have no letter of credence to his Majesty, and have not been received with the formalities usually practiced in the reception of foreign ministers, they cannot be deemed within the protection of that act, so that any privileges and exemp tions which they can claim must we apprehend be founded either on the general law of nations, as recognized by the laws of this country, or by special provisions between the two countries, & due authority acting thereon. "It seems therefore under all the circumstances highly expedient that the nature & extent of the privileges & exemptions claim'd by Mr. King on behalf of Messrs. Gore & Pinkney, and the grounds on which he claims such privileges & exemptions on their behalf should be clearly and explicitly stated to enable us to form a proper judgment thereon, & under this impression we take the liberty of suggesting to your Lordship the propriety of requesting to have such statement before we venture to give any opinion on a claim which appears to us new in its circumstances and important in its consequence." There does not appear to have been any further discussion of the subject with the British Government, but in order that they might not seem to have made "a claim entirely unfounded in the law or practice of nations," Messrs. Gore and Pinkney on the 7th of February 1797 addressed to Mr. King an elaborate exposition of their views on the subject. The privileges and immunities to which they thought themselves entitled by their office were, they said, "an exemption from the jurisdiction of the country, and from the payment of those taxes, to which public ministers are not liable." The reasons on which these exemptions were accorded to public ministers applied equally to those who under the stipulations of a treaty were to hear and decide upon claims against the government within whose territory they resided. Nor could they hold themselves to be under the protection of the American minister. It was the law that gave protection. They bore no relation to the American minister that could insure it. They should be independent of either government. As to what constituted a public minister, it was their opinion that if a person had a letter of credence, a power, or some commission from the sovereign of a country, if he was acknowledged and allowed by the sovereign of the country to which he was sent in the character communicated by his commission, and if his trust was to transact public affairs or business between nation and nation, such person was "a public minister, under whatever name, title, or style he may be authorized and commissioned, altho' he have no letters of credence to the sovereign, or be not received by him, with any particular formalities."1 ** In a letter to Mr. Pickering of July 29, 1797, Messrs. Gore and Pinkney inclosed copies of the correspondence and of the opinion of the law officers on their claim of privilege, and said: "The opinion of His Majesty's law officers rendered it proper that the grounds on which we found our opinion should appear. And thus it remains. We are liable to pay all the taxes that are assessed on British subjects; and we do pay them of course. Whatever opinion we entertain of this procedure, we have not the smallest desire of ever again raising the question. There is a personal delicacy which in our relation to the British Government absolutely forbids any further discussion of it, either by ourselves or others." In conclusion they suggest that in any future arrangements of a similar character it may be advisable to insert a clause expressly communicating the character and privileges of a public minister to the commissioners. In the United States it has been the practice to extend to persons acting in such a capacity as Messrs. Gore and Pinkney the free entry of articles belonging to them, but this has been In the course of their exposition Messrs. Gore and Pinkney cited Vattel, Book IV. secs. 25, 122; Wiquefort, Book I. chap. 1, p. 2; chap. 5, pp. 30, 40, 41; Martens, 206, 207, 221; 3 Burrows, 1481, 1676; 4 Blackstone's Comm. 70. done as a matter of courtesy and not as a matter of right. Whether such persons would be accorded all the privileges and immunities of diplomatic agents has never, I believe, been determined, and may be doubted. In many cases the foreign members of claims commissions in the United States have been diplomatic officers; and in at least one case, that of the commission under the treaty with Mexico of 1839, the foreign goverment has specially invested its commissioners with a diplomatic character in order that they might possess the immunities of public ministers. CHAPTER XI. DIFFERENCE AS TO THE TREATY OF GHENT: AWARD OF THE EMPEROR OF RUSSIA; MIXED COMMISSIONS; DOMESTIC COMMISSIONS. 1. AWARD OF THE EMPEROR OF RUSSIA. Possession of Slaves by British Forces. During the war between the United States and Great Britain of 1812 the British naval forces occupied numerous bays and rivers in the United States, and debarked troops who established posts at various places on the coast, near some of which there was a large slave population. In time these naval and land forces came into possession of a considerable number of slaves, some of whom they received as voluntary fugitives, and others of whom they took in predatory excursions. Others yet were seduced to run away from their masters. On the 2d of April 1814 Admiral Cochrane, commanding His Majesty's forces on the North American station, issued the following proclamation:2 "Whereas it has been represented to me that many persons now resident in the United States have expressed a desire to withdraw therefrom, with a view of entering into his Majesty's service, or of being received as Free Settlers in some of his Majesty's Colonies "This is therefore to give notice "That all those who may be disposed to emigrate from the United States will, with their families, be received on board his Majesty's ships or vessels of war, or at the military posts that may be established upon or near the coast of the United States, where they will have their choice of either entering into his majesty's sea or land forces, or of being sent as Free settlers 1 Précis de la question, ou exposé abrégé du différend qui est survenu par rapport au premier article du traité de Gand, entre les États-Unis d'Amérique et l'Angleterre, avec des pièces justificatives, à St.-Pétersbourg, 1821. * Niles Register, VI. 242. |