might have been legal, but the claimant expected freight. The captures under the order of the 6th of November fell within this class. Again, the captor had color of authority to seize and to send in for adjudication. The court would restore the property, but would not condemn the captors in costs; and yet it would be just that the claimants should receive costs and damages. In respect to the third class, the court of appeals, said the Lord Chancellor, were obliged in some instances to refuse the appeal because, a limited time having been allowed in which to prefer it and that time having expired, the captor thereby acquired rights not within the discretion of the high court of appeals to impair. Still the claimant might be able in a satisfactory manner to account for his not having come personally forward with the appeal. This was undoubtedly a case within the provisions of the treaty. The property could not be restored, but the full value might be awarded, and in such cases it must be paid out of His Majesty's treasury. The commissioners were not a court of appeals above the high court of appeals. They were, however, competent to examine questions decided by the high court of appeals, as well as all other cases described in the treaty, and they could give redress, not by reversing the decrees already passed and restoring the identical property, but by awarding compensation.

On its being suggested that the same embarrassments as had already occurred might arise in the future, if upon every objection to the competency of the commissioners a reference must be made to the respective governments for their instructions instead of such questions being decided by the commissioners themselves, the Lord Chancellor said "that the doubt respecting the authority of the commissioners to settle their own jurisdiction, was absurd; and that they must necessarily decide upon cases being within, or without, their competency." Soon after the conference with the Lord Chancellor Parliament adjourned for the

Resumption of Pro

ceedings. Christmas holidays, and the business of the

commissioners remained suspended until the 24th of January, when by appointment Mr. King met Lord Grenville at his office, and the latter, expressing regret at the delays that had taken place, said he hoped that the commissioners would go on without further interruption; that he had sent for the British commissioners and had told them "that it was the

opinion of the King's government, that they should proceed in examining and deciding every question that should be brought before them, according to the conviction of their consciences; in doing which they would examine cases already decided, and award on them and on all others, according to the provisions of the treaty, which it would likewise be their duty to consider and interpret." Lord Grenville added that it had not been deemed advisable to put anything in writing, as that would have the appearance of a new and explanatory article. After further conversation in relation to the dispatch of business by the high court of appeals the conference was brought to a close. The board reassembled. The memorials of Mr. Bayard and the demurrers of Mr. Gostling were withdrawn and new papers filed, and the commissioners proceeded to make awards.1

After the reassembling of the board several Awards and Delays. cases were disposed of by Sir William Scott and Dr. Nicholl, with the approval of the board. The first formal awards were made on the 13th of April 1797 by the concurrence of the two American commissioners and the fifth commissioner. These awards were in the case of the Betsey, Furlong, master, and of the Sally, Choate, master, in the former of which sentence had been rendered by the high court of appeals. The progress of the board was, however, greatly retarded in other cases by the absence of

1 This account of the controversy touching the finality of the decrees of the high court of appeals is taken from a manuscript report of Mr. King to the Secretary of State of February 20, 1797. This being a contemporaneous and official document, we have preferred it to the account given by Mr. Trumbull from recollection, which runs as follows:

"My opinion was decidedly with the American members. But I saw distinctly, that in the eyes of the British gentlemen, the question was of the deepest importance, and that a decision contradictory to their reverential estimate of the sanctity of the high court of appeal, would be submitted to by them with extreme reluctance, if it did not produce a remonstrance against our abuse of authority-a refusal to proceed in the business-ultimately a dissolution of the commission;—and thus, a renewal of angry discussion between the two nations. I therefore took time to consider, and finally suggested, that the question should be submitted to the lord chancellor (Loughborough) for his decision. He had taken a deep interest in the negotiation of the treaty, and undoubtedly must know the intentions of the parties. The British members of the commission readily acceded to this proposal. An audience was asked of the lord chancellor, and obtained, at which all the members of the board were present. The question was stated by the senior British commissioner, on which the board requested his lordship's opinion, and the answer was immediate and frank. "The

necessary proofs. This is an experience common to all claims commissions, and is due in part to the negligence or ignorance of claimants, and often in no small degree to the careless presentation of claims by one government to the other. The American commissioners strongly complained of the inartificial and fragmentary form in which claims were brought before the board, and advised that something be done in the United States to inform parties of the requisite proofs and to impress upon them the necessity of immediate and punctual attention to the subject.2

In accordance with this advice, the DepartNotice as to Proofs. ment of State issued on the 7th of September 1797 the following notice:

"A Detail of the Proofs necessary to be exhibited before the Board of Commissioners appointed, under the 7th article of the Treaty of Amity, Commerce and Navigation, between the United States and Great Britain, to adjust the Claims of the Citizens of the United States on Account of illegal Captures and Condemnations of their vessels, or other Property.

"In all cases the process, that is, copies of the proceedings in the vice-admiralty courts, or at least so much as is considered necessary before the Lords Commissioners, should be brought forward to accompany the claim preferred to the Board.

construction of the American gentlemen is correct. It was the intention of the high contracting parties to the treaty, to clothe this commission with power paramount to all the maritime courts of both nations-a power to review, and (if in their opinion it should appear just) to reverse the decisions of any or of all the maritime courts of both. Gentlemen, you are invested with solemn and august authority; I trust that you will use it wisely.' This decision of the chancellor terminated the difficulty, relieved me from a situation of extreme delicacy, and the board immediately proceeded in its duties." (Trumbull's Autobiography, 194–195.)

"Our commission has experienced some unexpected embarrassments, but the government has removed them in a way highly honorable and satisfactory. The King's agent objected to our jurisdiction in a case—a leading feature of which was that the Lords Commissioners of Appeal had affirmed the original condemnation. When the fifth commissioner, Gore, and myself were ready to overrule this objection, our right to decide upon our own jurisdiction was brought into question! The government has said that both points were against those who started them, and we are now prosperously under way again. I have no fears of a fair execution of the seventh article by this country." (Mr. Pinkney to Mr. Vans Murray, February 7, 1797, Pinkney's Life of Pinkney, 29.)

1 The board took a recess from July 1797 to November 1, 1797.

? Messrs. Gore and Pinkney to the Sec. of State April 13, 1797. (MSS. Dept. of State.)

"It is advisable, that in all cases the affidavit of the party, his clerks and others knowing the transaction, also copies and extracts of entries in the books of the party, made at the time of and relating to the transaction, the truth of which should be sworn to by his clerks, should be furnished to show that the voyage and property were as the ship's papers declare them to be.

"In many cases the party may hold letters and documents from the shippers and others, written at the time of and concerning the voyage, vessel and cargo, or either, which may be in question, and which letters may serve to confirm or elucidate other evidence. Should such be sent, accompanied by the testimony of the party and his clerks, that they are true, or if from any cause it may be inexpedient to send the originals, let the attestation be to the truth of the copy, and that the original contains nothing more as to that particular voyage or property. It will also be well to state the reason why the original is not sent.

"The foregoing will be highly useful in all cases, even in those cases where there was no act done by the master or by others to impair or lessen the force and weight of papers found on board at the time of capture, and where the papers were com- . plete and genuine and the transaction on the face of it perfectly fair.

"In all cases where the ship's papers were incomplete, where the transaction was in any degree suspicious from the want of papers ordinarily used and found on board vessels, or from any act of the master or others in destroying or concealing papers, or attempting to secrete property of the enemy, such extracts, correspondence and affidavits, as aforementioned, will be indispensable to show fully and clearly to whom the property belonged and to remove all suspicions and doubts as to the truth and fairness of the transaction.

"There are several classes of cases in which a charge may be brought forward of wilful omission and neglect, and which charge it will be necessary to remove.

"It should be understood in the United States, that in some cases the party captured neglected to make a claim for his property in the vice-admiralty courts; that in some, after hav ing made such claim there, he abandoned it; that in some after having prosecuted in the vice-admiralty, he failed to claim an appeal there, or give security for prosecuting his appeal; in some, the party neglected to claim or enter his appeal in the courts of appeal within the time limited by law, which time, in cases where there was a claim filed in the vice-admiralty court, is limited to nine months from the date of the sentence of the vice-admiralty, and in cases where there was no claim in the vice-admiralty, the time is limited to one year from the date of the sentence. There was at the request of Mr. Jay, a prolongation of the ordinary time for claiming appeals by special order of his Britannic Majesty. There are others where the party after having made his appeal neglected to take out the

usual process or to serve the same on the captors; and others where the party did not bring forward copies of the proceedings in the court of vice admiralty.

"Testimony should be furnished satisfactorily accounting for the neglect or abandonment in the particular case, where it happened, and such as will remove the presumption of 'wilful omission and neglect;' where there has been an omission to claim in the vice-admiralty, or an abandonment of the claim after being duly preferred, or a neglect to claim an appeal in due season of law, or within the time allowed under the particular order of his Britannic Majesty, or to prosecute such an appeal by not taking out and serving the usual process on the captors, or by not bringing forward copies of the proceedings in the court of vice-admiralty.

"In cases where money has been expended in prosecuting for the property in the vice-admiralty courts in the West Indies or elsewhere, it is necessary that evidence should be furnished, showing the amount expended and that it was of necessity. The affidavit of the person paying or receiving the money, or of those who were present at the payment, or knew of its being paid, would be satisfactory. In cases where the vessel has been hypothecated or property sold to provide the security demanded for prosecuting appeals from the vice-admiralty courts, evidence should be furnished that such hypothecation or sale was necessary, the amount sold, the loss and damage which accrued to the party from such sale or hypothecation. Evidence of the price at which the property was sold, and that at which it would have sold at the place of destination, when the vessel would have probably arrived, had she not been stopped, will show the loss sustained by the sale.

"In cases of demurrage, the loss may be proved by showing what that vessel, or such a vessel, could have earned during the detention. This may be by the testimony of those who hired or let vessels at the time, by the expenses incurred in victualling the crew, by the hazard to the vessel from the nature and waters of the harbor or ports where she was detained. "In cases where a claim is preferred to the Board for compensation, for a loss sustained by capture and condemnation, the value of the property at the place of destination at the probable time of its arrival, had it not been prevented by capture, may be proved by the affidavits of auctioneers, brokers and others disinterested in the particular case, or in any cases under the commission: prices current published at such times and places, will afford very satisfactory evidence as to value. Evidence should be obtained from all the considerable seaports in the United States of the premium paid for insurance from the various foreign ports, especially in the West Indies or other foreign ports; and where the party has insured his property, he should prove the rate of premium at which he insured it.

"Department of State, 7th September, 1797."